Tracts  of  Connecticut  Woman  Suffrage  Association.   No.  1. 


LEGAL  DISABILITIES 

OP 

MARRIED  WOMEN 

IX  COXXECTTCTJT. 


BY 

GEORGE  A.  IIICKOX, 

LITCHFIELD,  CONN. 

This  Tract  may  be  obtained  from  Case,  Lockwood  &  Braiuard,  Hartford,  C01111. 
Price,  $10.50  per  thousand. 


HARTFORD: 
PRINTED  BY  CASE,  LOCKWOOD  &  BRAINARD. 
1871. 


By  the  Constitution  of  the  Connecticut  "Woman  Suffrage 
Association,  all  persons  subscribing  to  the  Constitution  and 
paving  one  dollar,  become  members  of  the  Association. 

The  officers  of  the  Association  for  the  year  commencing  Sep- 
tember 'J,  1870,  are  as  follows : 

President. 

Rev.  Dr.  Nj  J.  BURTON,  Hartford. 

Vice  Presidents. 
Rev.  Dr.  JOSEPH  CUMMINGS,  Middletown. 
Rev.  Dr.  C.  E.  STOWE,  Hartford. 
Mrs.  H.  B.  STOWE,  Hartford. 
Rev.  W.  L.  GAGE,  Hartford. 
TIMOTHY  M.  ALLYN,  Hartford. 
JOHN  HOOKER,  Hartford. 
Rev.  C.  C.  CARPENTER,  Derby. 

Mrs.  THOMAS  ELMES,  Derby."  * 

Rev.  Dr.  T.  T.  STONE,  Brooklyn. 

Brig.  Gen.  B.  S.  ROBERTS,  New  Haven. 

CHARLES  CHENEY,  South  Manchester. 

WARD  CHENEY,  South  Manchester. 

Rev.  W.  W.  BELDEN,  Bristol. 

GEORGE  A.  HICKOX,  Litchfield. 

{secretary. 

Miss  F.  E.  BURR,  788  Main  St.,  Hartford. 

Treasurer. 
JOHN  HOOKER,  Hartford. 

Executive  Committee. 
Mrs.  JOHN  HOOKER,  Hartford. 
Mrs.  MARSHALL  JEWELL,  Hartford. 
Miss  ESTHER  PRATT,  Hartford. 
Mrs.  J.  G.  PARSONS,  Hartford. 
Mrs.  WM.  B.  SMITH,  Hartford. 
JOHN  IVES,  Hartford. 
Rev.  PHOEBE  HANAFORD,  New  Haven. 
CHARLES  AT  WATER,  New  Haven. 
Rev.  OLYMPIA  BROWN,  Bridgeport. 


Ave* 


LEGAL  DISABILITIES 

OF 

MARRIED  WOMEN  IX  CONNECTICUT. 


So  many  incorrect  and  incomplete  statements  of  the  law  of 
Connec.icut  regarding  married  women  have  found  their  way 
into  print  that  there  has  arisen  an  obvious  necessity  for  re- 
ducing that  law  to  some  convenient  form  for  reference.  Imper- 
fect as  the  following  resume  may  be,  it  will  probably  give  a 
better  idea  of  the  legal  relation  between  man  and  wife  as  it 
exists  in  this  State,  than  any  to  which  those  who  have  not  made 
a  special  study  of  the  matter  will  have  been  able  to  arrive. 

The  first  mistake  into  which  a  person,  not  a  lawyer  by  pro- 
fession, is  apt  to  fall  in  endeavoring  to  inform  himself  on  legal 
subjects,  is  that  of  supposing  that  the  whole,  or  at  least  the 
most  important  part,  of  our  law  can  be  found  in  the  statute 
book.  Such  is  not  the  case.  The  basis  of  our  jurisprudence 
is  what  is  called  the  common  law,  to  be  gathered  from  the  prac- 
tice and  decisions  of  the  English  and  American  courts  for  hund- 
reds of  years  past.  It  is  sometimes  called  the  unwritten  law 
from  the  fact  that  no  authorized  code  or  digest  has  ever  been 
made  of  it.  as  was  the  case  with  the  civil  law  under  Justinian, 
and  with  the  French  law  under  Napoleon.  The  common  law 
has  been  added  to  and  changed  by  statute  law  ;  but,  except  as 
so  modified,  remains  in  force  as  the  law  of  the  land.  Occasional 
uncertainty  arises  as  to  what  that  law  is,  owing  to  a  conflict  of 
decisions;  but,  in  the  absence  of  such  conflict,  decisions  of  the 
English  and  American  courts  are  generally  considered  as  estab- 
lishing the  law  for  us  as  well  as  for  them ;  and  all  cases  de- 
cided in  our  Connecticut  courts  of  highest  resort  are  of  binding 
and  conclusive  authority,  until  the  law  is  itself  changed  by  the 
legislature,  or  the  decisions  over-ruled  in  the  court  where  they 
were  made.    It  so  happens  that  all  the  alleviations  of  our 


4    LEGAL  DISABILITIES  OF  MARRIED  WOMEN. 


marriage  law  are  to  be  found  in  a  few  pages  of  our  Revised 
Statutes,  while  the  far  more  important,  unrepealed  provisions 
of  the  common  law  are  scattered  through  numerous  "  reports," 
and  only  briefly  summarized  in  the  text  books.  Hence  an 
unprofessional  reader  is  more  apt  in  this  than  in  other  branches 
of  the  law  to  get  erroneous  impressions  regarding  its  real  con- 
dition. 

The  subject  is  naturally  divided  into  three  heads,  which  we 
arrange  in  the  order  of  their  importance  : 

I.  Tiie  wife's  personal  subjection  to  the  husband. 

II.  Her  want  of  legal  authority  over  their  children. 

III.  Her  property. 


I— THE  WIFE'S  PERSONAL  SUBJECTION. 


The  lena-1  rights  of  the  husband  to  the  custody  of  the  person, 
to  the  strict  obedience,  and  to  the  services,  of  the  wife,  are 
almost  precisely  the  same  th;it  the  father  has  to  the  custody, 
obedience,  and  services  of  his  minor  child.  His  duty  of  main- 
tenance is  the  same ;  and  only  gross  misconduct,  similar  to  that 
which  justifies  the  minor  in  repudiating  the  parental  authority, 
or  third  persons  in  interfering  in  its  behalf,  will  justify  the  wife 
in  repudiating  the  marital  authority,  or  the  interference  of 
friends  in  her  behalf. 

I.    The  husband's  right  to  the  custody  of  his  wife's 

PERSON. 

The  husband  has  the  sole  right  to  choose  the  place  of  resi- 
dence, the  manner  of  life,  the  social  and  even  the  religious 
connections  of  the  family — for  the  wife  as  well  as  for  his 
children.  He  may  forbid  her  attending  the  church  of  which 
she  is  a  member,*  and  may  interdict  all  intercourse  with  her 
relatives  or  with  his.  t  Nor  Will  she  be  justified  in  leaving  him 
unless  he  is  guilty  of  such  misconduct  as  would  entitle  her  to- 
a  divorce.  $ 


*Tn  Latvrence  vs.  Lawrence,  (3  Paige,  272)  the  wife  being  a  member  of  the  Presbyte- 
rian Church,  the  husband,  who  had  quarrelled  with  that  church,  would  not  allow  her 
to  attend  it.  Chancellor  Walworth,  in  rendering  the  decision  refusing  her  a  divorce  a 
mensa  et  thoro,  says,  "  Although  it  was  an  act  of  great  unkindness  and  of  unreasonable 
oppression  on  the  part  of  the  husband  to  use  his  marital  power  in  separating  his  wifo 
from  the  church  of  which  she  was  a  member,  and  with  which  she  preferred  to  worship. 
I  have  no  hesitation  in  saying  that  she  mistook  her  duty  in  not  submitting  to  the 
oppressor." 

tl  Bishop  on  Mar.  and  Div.,  §  758.  In  Shaiv  vs.  Shaw,  decided  in  our  Supreme 
Court,  in  1845,  Ch.  Justice  Williams  says  in  giving  the  opinion  of  the  court :  "  Again, 
influenced  by  the  same  evil  passion,  [jealousy]  the  defendant  has  been  unwilling  his 
wife  should  visit  her  own  mother,  and  her  mother-in  law,  and  other  friends,  and  has 
forbidden  such  intercourse:  and  once  he  turned  the  mother-in-law  out  of  the  house,, 
without  cause,  and  forbade  his  wife  to  leave  the  house.  This  conduct  is  certainly  harsh , 
if  not  cruel  ;  but,  as  the  husba?id  must  have  the  right  to  say  who  shall  be  admitted  to 
his  house,  and  in  some  measure,  to  regulate  the  intercourse  of  his  wife,  the  court  caiinui 
draw  a  line  by  which  his  authority  can  be  restrained.'' 

1 1  Bishop  on  Mar.  and  Div. ,  §  569. 


6  THE  WIFE'S  PERSONAL  SUBJECTION. 


In  case  the  wife  leaves  the  husband,  except  for  legal  cause 
(dopes,  as  the  law  terms  it),  three  ways  of  compelling  her 
return  are  open  to  him : 

1st.  He  may  seize  her  person  wherever  he  finds  it.*  The 
works  of  our  Connecticut  lawyers  are  explicit  on  this  pomt. 
Chief  Justice  Reeve  says,  "It  seems  to  be  well  settled  that  if 
a  wife  elope  and  go  away  from  her  husband  without  cause,  the 
husband  may  seize  upon  her  person  and  bring  her  home."  J  In 
Judge  Dutton's  revision  of  Chief  Justice  Swift's  Digest  of  the 
Laws  of  Connecticut  the  power  of  the  husband  over  the  wife 
is  concisely  stated  as  follows  :  "  The  hu  band  has  power  and 
dominion  over  his  wife,  as  he  is  responsible  for  her  actions  ;  he 
may  control,  regulate,  and  restrain  her  conduct,  and  keep  h«  r 
hj  force  within  the  bounds  of  duty,  and  under  due  subjection 
and  subordination.'^ 

2d.  He  may  bring  a  civil  suit  against  those  advising  her 
flight,  or  harboring  her  afterwards  with  knowledge  of  the  facts  || 
What  constitutes  harboring  in  such  cases  is  thus  defined  by  the 
court  in  a  case  decided  in  the  New  York  Supreme  Court  m 
1848  :  "The  husband  has  a  right  to  the  society  and  assistance 
of  his  wife,  and  whoever  persuades  or  entices  her  to  separaie 
herself  froin,  him,  and  thus  deprives  him  of  that  right  is  liable 
in  this  action.  Thus,  if  the  defendant  had  opposed  the  plaintiff 
in  an  attempt  to  take  his  wife  home  ;  or  had  refused  him  access 
to  his  wife  while  she  was  remaining  in  his  house  ;  if  he  had 


*  "  The  husband. says  Lord  Mansfield,  "  has  in  consequence  of  his  marriage,  a  right 
to  the  custody  of  his  wife,  and  whoever  detains  he"  from  him,  violates  his  right,  and  he 
has  a  right  to  seize  her  wherever  he  finds  her."  See  8  Dowl.  P.  C.,  bo2  it  vis  held  in 
a  North  Carolina  case,  decided  in  1849,  that  a  husband  might  lawfully  use  force  to 
regain  possession  of  his  wife  from  one  with  whom  he  has  reason  to  helieve  she  had  com- 
naitted,  or  is  about  to  commit,  adultery.  State  vs.  Craton,  6  Iredell,  164.  This  right  is 
also  incidentally  recognized  in  the  cases  of  $rhunf7na,i  vs.  Pahver,  4  Barb.,  'ITi .  and 
Turner  vs.  Estes.  3  Mass.,  ol8.  It  would  seem  from  the  case  of  Luc  it  vs.  Pons'ord, 
(S  C.  &  l\,  <>87)  that  a  husband  would  be  justified  even  in  forcibly  entering  the  premi.-es 
of  a  third  person  to  get  possession  of  the  person  of  a  wife  harbored  there. 

t  Dom.  Bel.,  G6.  +1  Sw.  Dig.,  40. 

II  By  an  old  statute  of  Edward  I.,  the  person  so  interfering  was  liable  to  fine  an. 1 
imprisonment  (3  Bl.  Com.,  159).  "The  old  iaw  was  so  strict  in  this  point  '  sa  s 
Blackstone,  "  that  if  one's  wife  missed  her  way  upon  the  rond,  it  was  not  lawful  for 
another  man  to  take  her  into  his  house,  unless  she  was  benighted  and  in  danger  i  f 
being  lost  or  drowned  .  but  a  stranger  might  carry  her  behind  him  on  horseback  to 
market,  to  a  justice  of  the  peace  for  a  warrant  against  her  husband,  or  to  the  spiritual 
court,  to  sue  for  a  divorce  In  Winsmare  vs.  Greenbank,  ( vVilles,  577,)  the  husband 
recovered  t'3  OCmT  damages  against  the  defendant  who  harbored  and  concealed  the  wiffe 
and  advised  her  not  to  return  to  him.  The  Court  say,  "  every  moment  that  a  wife 
continues  absent  from  her  husband  (without  justifiable  cause)  without  his  consent,  is  a 
new  tort,  and  every  one  who  persuades  her  to  do  to.  does  a  new  i.ijury,  and  cannot  but 
know  it.'' 


THE  WIFE'S  PERSONAL  SUBJECTION.  7 


attempted  to  conceal  her  from  her  husband  ;  in  short,  if  he  had 
done  anything  with  a  view  to  deprive  the  plaintiff'  of  the  com- 
pany or  service  of  his  wife,  it  would  undoubtedly  constitute 
such  a  harboring  as  the  law  contemplates  when  it  gives  this 
action  to  the  husband."*  This  form  of  remedy  has  been  sanc- 
tioned in  very  recent  cases  and  enforced  by  very  heavy  verdicts-! 

3d.  The  husband  may  retain  his  eloping  wife's  property, 
and  refuse  her  a  maintenance ;  he  may  retain  their  children, 
and  refuse  her  access  to  them ;  and  he  can  seize  any  property 
she  may  be  so  fortunate  as  to  acquire  subsequently.  In  short, 
such  is  her  state  of  destitution,  and  so  manifold  her  disabilities, 
that  he  can  rely  on  them  to  compel  her  return,  unless,  indeed, 
his  person  has  become  so  odious  to  her  as  to  render  the  harshest 
and  most  hopeless  poverty  preferable  to  his  society. 

It  is  not  easy  to  determine  precisely  what  coercive  measures 
the  husband  may  take  to  enforce  the  legal  duty  of  the  wife 
while  living  with  him.  Judge  Swift  maintains,  as  we  have  seen 
above,  that  "he  may  control,  regulate,  and  restrain  her  conduct, 
and  keep  her  by  force  within  the  bounds  of  duty,  and  under  due 
subjection  and  subordination."  The  English  authorities  even 
go  to  the  length  of  permitting  the  husband  to  keep  the  wife  in 
confinement  for  an  indefinite  period  unless  she  appear  willing  to 
submit  to  his  authority.  % 


*  Schunemanxs.  Palmer,  4  Barb.,  227. 

t  Barnes  vs.  AUen,  30  Barb.,  663.  In  a  late  New  York  case  (Srherpf  vs.  Szadeczkij, 
4  E.  D.  Smith,  110)  a  verdict  of  $10,000  was  rendered  against  the  person  wiio  enticed 
away  tiie  plaintiff's  wife,  although  no  crim.  con.  was  charged. 

+  "  There  can  be  no  question  respecting  the  common  law  right  of  a  husband  to 
restrain  his  wife  of  her  personal  liberty,  wittia  view  to  prevent  her  going  into  society  of 
which  he  disapproves,  or  otherwise  disobeying  his  rightful  authority.**  1  Wend.  Bl., 
445,  note.  "  He  may  in  the  plenitude  of  his  power,  adopt  any  act  of  physical  coercion 
which  does  not  endanger  the  life  or  health  of  the  wife  or  render  cohabitation  unsafe.'' 
4  Petersdorfs  Ab.,  21,  note.  On  this  point  the  decision  of  Justice  Coleridge  in  re 
Cochrane  (8  Dowl.  P.  C.,  632),  is  a  leading  case.  Mrs.  Cochrane  had  left  her  husband  in 
lS3'i  and  resided  abroad  with  her  mother  for  four  years,  conducting  herself  with  entire 
propriety.  Obtaining  possession  of  her  person  by  strategem,  he  confined  her  to  his 
house  in  England.  She  avowed  her  determination  to  leave  him  again  on  the  first  oppor- 
tunity, and  the  court  decided  that  under  such  circumstances  the  husband  was  justified 
in  keeping  her  in  confinement.  "  The  principle  on  which  it  [the  law]  proceeds,  is 
broad  aud  comprehensive  :  it  has  respect  to  the  terms  of  the  marriage  contract  and  the 
infirmity  of  the  sex.  For  the  happiness  and  honor  of  both  parties,  it  places  the  wife 
under  the  guardianship  of  the  husband,  and  entitles  him  for  the  sake  of  both,  to  pro- 
tect her  from  the  danger  of  unrestrained  intercourse  with  the  world,  by  enforcing 
cohabitation  and  a  common  residence.  *  *  *  It  is  urged  that  I  am  sentencing  her 
to  perpetual  imprisonment.  Cases  of  hardship  will  arise  under  any  general  rule,  and 
so  long  as  there  are,  unfortunately,  ill  assorted  unions,  there  will  be  cases  in  which  wives: 
will  feel  it  hard  to  be  compelled  to  reside  with  their  husbands.  *  *  *  But  if  then; 
is  anything  painful  in  the  present  state  of  things,  she  cannot  properly  complain  of  ir, 
for  it  arises  from  her  own  breach  of  duty,  and  she  may  end  it  whenever  she  will  cheer- 
fully and  frankly  resolve  on  performing  tae  contract  she  has  entered  into.'"    In  tue 


8  THE  WIFE'S  PERSONAL  SUBJECTION. 


A  remarkable  case  illustrative  of  the  husband's  power  over 
the  wife's  person  was  decided  in  our  Supreme  Court  in  1845.* 
This  was  a  divorce  suit  brought  by  the  wife  on  the  ground  of 
intolerable  cruelty,  the  so-called  omnibus  clause  not  having  then 
been  introduced  into  our  statute.  The  petitioner  proved  that 
her  husband  was  in  the  habit  of  using  the  most  abusive  language 
towar  d-  her,  and  that  he  had  repeatedly  accused  her  of  adultery, 
lie  forbade  her  having  any  intercourse  with  her  friends ;  he 
turned  the  mother  of  her  former  husband  (who  had  come  to 
pee  her  when  she  was  sick)  out  of  the  house ;  on  one  occasion 
lie  forbade  the  petitioner  to  leave  the  house  and  endeavored  to 
fasten  her  into  it ;  and  he  otherwise  behaved  in  a  most  brutal 
manner  towards  her.  f  The  court  held  that  whatever  might 
have  been  the  unreasonableness  and  "  indelicacy"  of  his  con- 
duct, i b  was  not  unlawful,  and  refused  to  grant  a  separation,  t 

The  authority  of  the  husband  as  the  legal  custodian  of  the 
person  of  the  wife  is  so  absolute,  and  in  general  so  undisputed, 
that  cases  regarding  it  are  not  of  so  frequent  occurrence  in  the 
books  as  those  concerning  their  respective  rights  of  property. 
Hence,  in  order  to  show  how  completely  the  law  will,  in  case 
of  necessity,  vindicate  that  authority,  judicial  decisions  and  legal 
opinions  have  been  cited  much  more  fully  than  will  be  nece.-sary 
011  other  branches  of  the  subject. 

II.  The  husband's  right  to  the  services  of  the  wife. 

Whatever  the  wife  earns  in  the  service  of  the  husband 
belongs  to  him  absolutely.  Whatever  she  earns  in  the  service 
of  others  vests  in  him  under  the  law  regulating  property  coming 
to  her  from  any  other  source.  §  "  In  general,  whatever  she 
earns,  she  earns  as  his  servant,  and  for  him  ;  for  in  law,  her  time, 
and  her  labor,  as  well  as  her  money,  are  his  property."  |j 


absence  of  any  American  decisions,  Bishop,  in  his  works  on  Criminal  Law  and  Marriage 
and  Divorce,  doubts  whether  our  courts  would  go  to  the  length  those  of  England  have 
done  in  constituting  the  husband  not  only  judge  and  jury  but  jailer  in  cases  of  the 
wife's  disobedience.  He  does  not,  however,  deny  him  the  right  to  "  restrain  her  locomo- 
tiou"  under  certain  circumstances:  1  Grim.  Law,  775  ;  1  Mar.  and  Div.,  756. 

*  Shcnc  vs.  Shaw,  17  Conn.,  189,  heretofore  cited. 

t  lie  frequently  compelled  her  to  occupy  the  same  bed  with  him  under  circumstances 
which  endangered  her  health,  and  on  two  occasions  took  her,  by  force,  from  the  bed  of 
his  step-daughter,  to  which  she  had  retired,  and  compelled  her  to  occupy  a  bed  with 
himself. 

+  Subsequently,  however,  this  grossly  abused  Jady  obtained  a  divorce  from  the 
legislature. 

§  Rev.  Stats.,  303,  §  19.  U  1  Pars.  Cont.,  345. 


THE  WIFE'S  PERSONAL  SUBJECTION.  9 


That  the  parent  should  be  entitled  to  the  services  of  a  minor 
child  is  eminently  just ;  he  only  receives  a  quid  pro  quo.  In- 
deed the  child  earns  its  father,  on  an  average,  far  less  than  it 
costs  him,  from  the  time  of  its  birth  till  it  arrives  at  majority. 
Such  is  not  the  case  with  the  wife.  Most  Connecticut  women 
marry  at  maturity,  and  spend  the  prime  of  their  lives  in  the 
service  of  their  husbands.  At  the  risk  of  their  lives,  and  often 
to  the  ruin  of  their  health,  they  bear  them  children.  Over 
those  children  they  have  no  legal  control,  except  such  delegated 
power  as  their  husbands  choose  to  allow.  They  work  more 
hours  a  day  than  the  hired  servant,  and  were  that  labor  recom- 
pensed as  the  labor  of  women  other  than  wives  is  recompensed, 
it  would  ensure  them  a  handsome  support  for  their  declining 
years.  Yet  the  law  offers  them  no  pretense,  even,  of  such  a 
recompense. 

Incident  to  the  husband's  right  to  the  wife's  services  is  her 
right  to  a  decent  maintenance  in  accordance  with  their  condition 
in  life.  The  law  considers  her  entitled  to  necessary  housing, 
food,  drink,  clothing,  and  medicine.  She  may  also  have  the 
services  of  a  lawyer  to  put  her  husband  under  bonds  to  keep 
the  peace,  if  he  beat  her,  or  threaten  to  beat  her ;  but  not  to 
have  him  fined,  *  nor  to  procure  a  divorce  f  from  him,  for  such 
abuse. 

Out  of  the  husband's  right  to  the  wife's  services  grows  his 
right  of  action  in  case  of  injury  to  the  wife's  person,  wherein 
he  may  recover  damages  for  loss  of  service  and  for  attendance 
and  medicine  supplied  during  her  illness.  It  is  also  upon  this 
supposed  loss  of  service  that  the  husband's  right  of  action  for 
the  seduction,  for  the  enticing  away,  or  for  the  harboring  of  his 
wife,  is  grounded.  But  although  in  such  cases  the  loss  of  ser- 
vice forms  the  ground  of  action,  it  does  not  limit  the  amount  of 
damages.  Heavy  "  vindictive"  damages  are  allowed  the  hus- 
band for  the  presumed  injury  to  his  feelings,  loss  of  wife's  soci- 
ety, &c. 

III.    The  wife  is  by  law  disabled  from  protecting- 

HER  OWN  INTERESTS. 

The  husband's  absolute  control  over  the  person  of  the  wife  is 
further  secured  by  her  legal  inability  to  become  a  party  to  any 
contract  whatsoever.  $    When  living  with  the  husband,  and 

*  Gnndell  ts.  Gorlmond,  5  A.  &>E.,  755.        t  Shelton  va.  Pendleton,  18  Conn,,  417. 
t  Except  such  contracts  as  have  direct  reference  to  her  "  separate"  property,  should 
she  be  processed  of  any. 

2 


10         THE  WIFE'S  PERSONAL  SUBJECTION. 


managing  his  household,  the  law  implies  an  agency,  by  virtue 
of  which  she  can  make  contracts  on  his  behalf  for  household 
supplies.  Should  he  become  dissatisfied  with  her  management, 
however,  he  can  at  any  time  terminate  this  implied  agency  and 
stop  his  liability,  by  giving  notice  to  the  parties  with  whom  she 
is  in  the  habit  of  dealing;*  so  that  the  common  impression 
that  a  wife  can  persist  in  running  her  husband  in  debt  contrary 
to  his  wishes,  is  a  mistake.  The  inability  to  contract  is  more 
complete  in  the  case  of  married  women  even  than  in  that  of 
minors.  The  contracts  of  the  latter  may  be  ratified  on  their 
coming  of  age,  whereas  those  of  the  former  are  absolutely  void. 
The  practical  result  of  this  disability  is  to  make  it  impossible 
for  a  wife  to  engage  or  continue  in  any  business  without  the 
husband's  consent,  and  greatly  trammels  her  action  where  such 
consent  is  given. 

Not  only  can  the  wife  make  no  contracts,  and  therefore  under- 
take no  business,  without  the  husband's  consent,  she  cannot 
even  protect  her  person,  her  reputation,  or  her  property  by 
bringing  suits  for  injuries  to  them.  All  such  suits  are  brought 
in  the  names  of  husband  and  wife  jointly,  but  she  has  no  con- 
trol over  them,  whatsoever ;  he  usee  her  name,  indeed,  but  may 
do  so  without  her  consent,  or  even  contrary  to  her  wishes.  So 
entire  is  his  authority  over  the  matter,  that  if  he  sees  fit  to  use 
force  for  securing  custody  of  her  person  or  obedience  to  his 
commands,  both  he  and  his  agents  are  screened  from  civil  suit 
on  her  behalf,  f  I»  fcict,  the  married  woman's  disability  in  this 
respect  is  more  complete  than  that  of  the  minor,  who  can  sue 
by  u  next  friend." 

The  damages  recovered  by  the  husband  for  injuries  to  the 
person,  reputation,  and  property  of  the  wife,  vested  in  him 
absolutely,  at  common  law ;  but  by  our  present  statute  only  the 
use  of  the  same  would  belong  to  him,  as  is  the  case  with  other 


*  "  Ordinarily  he  [the  husband]  will  be  presumed  to  assent  to  her  [the  wife's]  making 
such  purchases  as  in  the  conduct  of  the  domestic  concerns  are  proper  for  her  manage- 
ment and  supervision  ;  but  he  is  at  liberty  to  withhold  such  assent,  and  destroy  such 
presumption,  by  an  express  prohibition  :  and  if  he  do  so,  no  one,  having  notice  thereof, 
may  trust  the  wife  in  reliance  upon  his  credit,  unless  the  husband  so  neglects  his  own 
duty  that  supplies  become  absolutely  necessary,  according  to  their  condition."  Wood- 
ruff J.  in  Keller  vs.  Phillips,  decided  in  the  New  York  Court  of  Appeals  in  1S68  (39  N. 
Y.,  355). 

t  About  a  year  since,  a  husband  procured  the  publication  in  a  newspaper  in  Litchfield 
county  of  a  notice  charging  his  wife  with  adultery,  and  with  having  given  birth  to  an 
illegitimate  child.  The  publication  was  probably  with  a  view  to  blacken  her  character 
and  facilitate  his  obtaining  a  divorce  :  nevertheless  our  law  left  her  entirely  without 
legal  power  to  redress  so  flagrant  an  injury  to  her  reputation. 


THE  WIFE'S  PERSONAL  SUBJECTION.  11 


property  accruing  to  the  wife  during  marriage.  By  a  recipro- 
cal provision  of  the  law,  suits  for  injuries  committed  by  the 
wife  to  the  persons  or  property  of  others  must  be  brought 
against  husband  and  wife  jointly  ;  and  the  property  or  persons 
of  both,  or  either,  may  be  taken  in  satisfaction  of  judgments 
rendered  against  them  in  such  suits.  The  courts  of  Connecticut 
are  less  liberal  than  those  of  England  to  the  wife  when  impris- 
oned on  civil  process.  The  latter  discharge  the  wife  on  motion, 
if  she  has  no  property ;  whereas,  by  our  practice,  she  must 
sutler  confinement  and  procure  her  release  like  any  other  im- 
prisoned defendant.  * 

For  her  criminal  acts  a  married  woman  is  alone  liable.  The 
control  the  husband  is  supposed  to  exercise  over  the  wife  is  so 
great,  however,  that  all  crimes  (except  treason,  murder,  and 
keeping  a  house  of  ill-fame),  committed  by  her  in  his  presence, 
are  presumed  to  have  been  done  under  such  coercion  as  to 
remove  all  moral  responsibility  on  her  part,  and  he  only  will  be 
punished  for  them.  She  will  be  acquitted  in  such  case,  unless 
it  is  proved  affirmatively  that  she  acted  of  her  own  free  will 
and  not  under  his  direction.  Should  a  married  woman  be 
prosecuted  and  convicted  of  crime,  her  husband  is  not  liable  for 
payment  of  fine  or  costs ;  f  and  it  would  seem  that  he  would 
not  be  liable  for  the  expense  of  her  defence,  even  if  he  himself 
instigated  her  prosecution.  % 

IV.    The  unequal  legal  provisions  for  enforcing 

THE  RESPECTIVE  DUTIES   OF  HUSBAND  AND  WIPE. 

It  is  entirely  characteristic  of  the  existing  law  of  marriage 
that  while  the  most  arbitrary  authority  is  given  the  husband  to 
secure  the  legal  obligations  on  the  part  of  the  wife,  no  corres- 
ponding care  is  taken  to  ensure  the  performance  of  the  duties 
of  the  marriage  covenant  on  his  part. 

In  case  the  wife  leaves  the  husband  for  cause  not  justifying 
divorce,  he  may  seize  her  by  force,  he  may  prosecute  the 
friends  who  harbor  her,  and  he  has  a  terrible  ally  in  her  condi- 
tion of  utter  poverty  and  destitution.  All  her  property  remains 
in  his  hands  and  cannot  be  removed  without  his  consent.  If 


*  Rail  vs  White,  27  Conn.,  495.  fBates  vs.  Enright,  42  Me.,  117. 

X  The  only  Connecticut  case  we  have  found  directly  in  point  is  that  of  Shelton  vs. 
Hoadiy,  15  Conn.,  535.  Here  a  wife  was  complained  of  by  her  husband  for  violent 
conduct  and  imprisoned  on  her  failure  to  procure  sureties  of  the  peace.  Her  attorney 
sued  her  husband  for  his  fees,  and  the  Superior  Court  decided  against  his  claim.  The 
Supreme  Court  gave  no  opinion  on  the  merits  of  the  case. 


12         THE  WIFE'S  PERSONAL  SUBJECTION. 

she  attempt  to  earn  other  property,  or  secure  a  salaried  position, 
he  can  seize  that  properly  and  demand  that  salary,  notwith- 
standing his  own  liability  for  her  support  has  ceased.  On  the 
other  hand,  the  legal  provisions  to  secure  the  wife  the  society 
of  the  husband  are  absurdly  inadequate.  If  he  is  rich  enough 
to  afford  her  a  separate  maintenance,  he  may  pension  her  off  at 
any  moment  he  sees  fit.  The  English  reports  are  full  of  decis- 
ions arising  under  this  practice.  *  If  he  is  poor  enough,  or 
cunning  enough,  to  have  no  property  within  reach  of  the  sheriff, 
his  duty  of  maintenance  practically  ceases,  since  it  cannot  be 
enforced.  Should  she  be  totally  abandoned,  indeed,  the  wife 
recovers  her  independence ;  |  but  the  shiftless  husband  who 
lives  upon  the  services  of  the  industrious  wife  still  enjoys  his 
full  marital  authority  over  her  person  and  property. 

It  will  be  seen  hereafter  that  the  husband's  right  of  curtesy, 
'*.  e.,  to  the  use  of  all  the  wife's  real  estate  for  life  (provided 
they  have  had  living  issue),  is  secured  to  him  absolutely  ;  while 
the  wife's  right  of  dower,  i.  e.,  to  the  use  for  life  of  one-third 
her  deceased  husband's  real  estate,  may  be  easily  defeated  by 
his  conversion  of  that  estate  into  personal  property  during  his 
life-time,  without  her  consent,  or  by  his  disposing  of  it  among 
his  heirs  b}r  deed  instead  of  by  will.  $  In  like  manner  the  hus- 
band has  the  use  of  all  the  wife's  personal  estate  during  his  life., 
whatever  her  will  may  be ;  §  while  he  has  the  power  to  cut  her 
off  by  will  from  her  distributor}-  share  in  his  personal  estate. 

But  the  grossest  inequality  occurs  in  case  of  violation  of 
matrimonial  duty  on  the  part  of  the  husband  or  wife.  If  she 
commit  adultery,  he  may  have  her  imprisoned  from  two  to  five 
years  in  the  State  Prison ;  ||  he  may  procure  a  divorce  ;  or  he 
may  turn  her  out  of  doors,  without  becoming  liable  for  her  sup- 
port.   2sor  will  the  fact  that  he  has  himself  been  guilty  of  a 


*  A  deed  of  separate  maintenance  which  we  find  in  Leu-is  vs.  Ponsford,  8  C.  &  P., 
687;  shows  the  kind  of  agreement  usually  made,  and  enumerates  very  carefully  the 
marital  privileges  renounced  :  the  husband  covenants,  11  That  notwithstanding  their 
marriage.it  shall  be  lawful  for  the  said  M.  P.  [the  wife]  at  all  times  to  live  separate 
from  him  the  said  J.  P.  [the  husband]  in  such  manner  as  if  she  were  sole  and  unmarried. 
And  that  he  shall  not  nor  will  compel  her  to  cohabit  or  live  with  him  by  any  ecclesiasti- 
cal censure  or  proceeding,  or  otherwise  howsoever,  nor  sue  or  prosecute  any  person  or 
persons  for  receiving,  harboring,  or  cherishing  the  said  M.  P.,  nor  use  or  offer  any 
violence,  force  or  restraint  to  the  person  of  the  said  M.  P..  or  molest  or  disturb  her  in 
her  way  of  living  or  in  her  liberty  of  going  or  staying  in  such  place  or  places  as  she  shall 
think  tit.  but  that  she  shall  to  all  intents  whatsoever  be  ireed  from  the  power,  will, 
restraint  and  authority  of  the  said  J.  P.?' 

tRev.  Stats.,  304,  §24,2-5. 

+  Stewart  vs.  Stewart,  5  Conn.,  317.      §  Rev.  Stats.,  304,  §20.       ||  Rev.  Stats.,  265. 


THE  WIFE'S  PERSONAL  SUBJECTION.  13 


like  crime  affect  his  right  to  discard  the  wife,  and  refuse  her  a 
maintenance,  although  under  such  circumstances  neither  party 
would  be  allowed  a  divorce.  It  has  been  decided  that  even 
where  the  husband  had  introduced  a  mistress  into  his  family 
and  had  driven  out  his  wife,  her  subsequent  adultery  would 
absolve  him  from  further  liability  for  her  support.  *  If  the  hus- 
band, on  the  other  hand,  is  incontinent  (unless  the  wife  of  some 
other  man  is  involved),  he  can  only  be  punished  by  a  fine  of 
Sevan  dollars  or  by  thirty  days  imprisonment  in  the  common 
jail,  f  His  wife  may  obtain  a  divorce,  or  she  may  leave  him 
without  divorce ;  but  in  the  latter  event  he  will  still  be  entitled 
to  the  custody  of  her  children,  and  of  her  property,  even  of 
what  she  may  subsequently  earn,  and  she  will  still  be  unable  to 
make  contracts  or  do  business  as  an  unmarried  woman.  Unless 
divorced,  her  only  right  will  be  that  of  a  bare  maintenance,  to 
be  enforced  by  suits,  as  for  ordinary  debts,  on  the  part  of  those 
furnishing  her  such  maintenance. 

One  of  the  greatest  legal  advantages  of  husband  over  wife, 
in  case  of  difference  or  litigation  between  them,  consists  in  his 
possession  of  all  the  property  of  both  parties.  If  she  commences 
a  suit  for  divorce,  she  must  begin  by  leaving  her  home,  her 
children,  and  her  property,  in  his  hands.  Connecticut  courts, 
less  liberal  than  most  in  that  particular,  wTill  make  her  no  allow- 
ance, even  out  of  her  own  property,  for  employment  of  counsel, 
or  for  preparation  and  trial  in  a  suit  for  divorce  against  her 
husband.  %  Even  if  she  prove  the  grossest  misconduct  on  his 
part,  the  court  will  allow  her  no  costs.  In  case  of  suit  for 
divorce  by  the  husband  against  the  wife,  the  court  will,  indeed, 
order  the  payment  to  her  attorney  of  funds  (practically  a  very 
insufficient  amount)  for  maintaining  her  defence.  Should  he 
procure  her  prosecution  for  adultery,  or  other  crime,  the  decis- 
ions wrould  indicate  that  he  would  not  be  obliged  to  employ 
counsel  or  furnish  funds  for  her  defence.  §  How  unequal  the 
contest  must  be  between  one  possessing  all  the  sinews  of  litiga- 
tion, and  one  dependent  upon  charity  for  the  maintenance  of 
her  rights,  is  sufficiently  manifest. 


*  Govier  vs.  Hancock,  6  Term,  G03.  This  decision  is  fully  sustained  by  the  court  in 
the  late  case  of  Gill  vs.  Read,  5  R.  I. ,  345. 

t  Rev.  Stats.,  266.  %  Shelton  vs.  Pendleton,  18  Conn.,  41". 

§Shelton  vs.  Hoadley,  15  Conn.,  535. 


11 


TUB  WIPES  PERSONAL  SUBJECTION. 


It  is  much  easier  to  trace  the  origin  than  to  apologize  for  the 
continuance  of  such  laws  as  we  have  sketched  above.  "  At  com- 
mon law,"  says  Professor  Parsons,  "  the  disability  of  a  married 
woman  is  almost  entire.  Her  personal  existence  is  merged  for 
most  purposes  in  that  of  her  husband.  This  was  not  so  among 
the  Anglo-Saxons,  nor  with  the  earlier  Teutonic  races  ;  and 
must  be  explained  as  one  of  the  effects  of  the  feudal  system." 
Under  that  system  dependence  was  the  universal  rule.  It  was 
then  believed  that  the  peace  and  well  being  of  the  community 
could  only  be  secured  by  the  dependence  of  the  mass  of  the 
population  on  certain  feudal  superiors,  and  by  the  further  depend- 
ence of  those  superiors  on  one  sovereign  will.  Just  as  it  is  now 
argued  that  equality  and  order  are  incompatible  in  the  marriage 
state,  it  was  then  supposed  that  equality  and  order  were  incom- 
patible in  the  political  state.  During  the  centuries  that  have 
elapsed  since  our  marriage  law  took  its  present  shape,  the 
emancipation  and  then  the  enfranchisement  of  bne  class  after 
another  has  been  effected,  till  at  last,  in  this  country,  every  male 
citizen  has  his  freedom  and  his  vote.  The  last  step  in  this 
reform  has  been  attained  at  the  cost  of  a  great  social  and  polit- 
ical revolution,  overturning  the  government  of  the  few  possessed 
of  property  and  intelligence,  and  establishing  the  government 
of  the  many  possessed  of  neither.  This  revolution  has  been 
effected,  and  can  only  be  justified,  on  the  principle  that  no  class 
or  race  of  men,  however  superior  by  nature  and  education,  can 
be  trusted  with  the  political  and  social  control  of  any  other 
class,  however  degraded  by  ignorance  or  inferior  by  nature. 
The  theory  of  universal  suffrage  is  based  on  the  great  lesson  of 
all  political  experience, — that  only  those  who  suffer  from  abuses 
will  ever  thoroughly  remedy  them.  Slavery  would  have  waited 
long  for  abolition  at  the  hands  of  slave-holders ;  and  who  will 
claim  that  Northern  philanthropy  was  pure  enough  to  have 
abolished  slavery,  or  to  have  established  negro  suffrage,  had 
there  been  no  manifest  military  or  political  advantage  to  accrue 
to  those  abolishing  the  one,  or  establishing  the  other  ? 

The  history  of  the  legislation  of  the  last  quarter  of  a  century 
regarding  the  law  of  marriage  forms  no  exception  to  the  general 
rule.  .  None  of  those  statute  alleviations  of  the  harshness  of  the 
common  law  have  reached  the  root  of  the  evil — the  absolute 
personal  dependence  of  the  wife  on  the  husband.  The  tender- 
ness with  which  legislatures  treat  this  sole  remaining  relic  of  a 
scheme  of  dependence,  once  general,  is  truly  wonderful,  espe- 


THE  WIFE'S  PERSONAL  SUBJECTION.  15 


cially  as  contrasted  with  the  root-and-branch  work  that  has  heen 
made  with  every  system  of*  male  tutelage.  In  the  fundamental 
rule  of  the  wife's  personal  subjection — the  most  important 
branch  of  this  subject,  and  the  only  one  yet  considered — no 
reform  has  even  been  attempted.  In  many  States  the  property 
rights  of  married  women  have  been  placed  on  a  footing  approx- 
imating to  equality.  In  none  has  her  personal  liberty  been 
secured,  or  her  legal  servitude  alleviated,  except  in  the  most 
superficial,  we  might  justly  say  unintentional  manner.  Yet  it 
must  be  perfectly  obvious  that  personal  rights  must  precede 
property  rights  to  render  the  latter  of  any  real  avail ;  the  secur- 
ing of  u  separate"  property  to  one  under  strict  tutelage  to  a  legal 
master,  is  not  the  thorough  work  legislators  make  when  they 
remedy  abuses  under  the  sharp  eye  of  the  suffering  voter.  Soci- 
ety educates  women  with  a  view  to  marriage,  and  to  marriage 
only ;  yet  she  cannot  marry  without  renouncing  that  liberty  of 
person  and  that  equality  of  right  which  are  the  boasted  inheri- 
tance of  every  American  citizen.  With  the  single  exception 
of  corporeal  chastisement,  the  same  modes  of  enforcing  obedi- 
ence are  open  to  the  husband  that  are  given  to  the  father.  Any 
system  that  should  place  a  man,  arrived  at  the  maturity  of  his 
bodily  and  mental  powers,  in  such  a  state  of  subjection,  and 
should  bind  him,  moreover,  to  hard  labor  for  a  mere  maintenance, 
would  be  reckoned  a  monstrous  tyranny.  Regulations  made 
shortly  after  the  war  which  proposed  a  far  less  stringent  obedi- 
ence on  the  part  of  the  Southern  freedman  towards  the  South- 
ern planter,  were  indignantly  rejected  by  the  dominant  North. 
The  introduction  of  Coolie  laborers,  bound  to  service  for  a  term 
of  years,  has  been  made  a  penal  offence.  Yet  a  system  of 
dependence  which  condemns  to  complete,  if  not  to  harsh,  servi- 
tude a  large,  industrious,  and  intelligent  portion  of  the  Anglo- 
Saxon  race,  continues  to  be  the  law  of  the  land !  * 


*  An  amusing  instance  of  the  superficial  way  in  which  this  subject  has  been  treated, 
has  appeared  of  late  in  the  journals  opposed  to  female  suffrage  :  It  was  gravely  affirmed 
that  in  several  States,  where  the  husband  was  living  in  his  wife's  house,  she  had  the 
legal  power  to  turn  him  out  into  the  street.  Yet  the  husband,  as  we  have  seen,  would 
in  such  case  have  the  legal  right  to  take  his  wife  with  him  by  force,  could  compel  ber  to 
remain  with  him,  living  in  the  manner  s ratable  to  his  condition,  and  could  put  her  into 
actual  confinement  if  she  manifested  a  disposition  to  "  elope.1' 


II— THE  WIFE'S  WANT  OF  LEGAL  AUTHORITY  OYER  HER 
CHILDREN. 


"  A  mother,  as  such,"  says  Blackstone,  "  is  entitled  to  no 
power,  but  only  to  reverence  and  respect."*  So  completely  is 
the  existence  of  the  wife  merged  in  that  of  the  husband,  at 
common  law,  that  the  whole  parental  authority  vests  in  him 
alone.  Whatever  may  be  the  common  practice,  the  law  makes 
the  wife  and  children  co-servants  of  the  legal  head  of  the  family. 

I — When  husband  and  wife  live  together. 

In  no  case  that  we  are  aware  of,  is  the  mother,  living  with 
the  father,  recognized  by  law  as  having  any  legal  rights  over, 
or  interest  in,  her  children.  She  may  be  deprived,  at  any  time, 
of  their  society  by  the  father's  sending  them  out  to  service, 
without  her  consent,  f  The  father  may,  if  they  desire,  bind 
them  out  as  apprentices,  during  minority,  without  her  consent.^ 
He  may  also  give  them  away  without  her  consent  to  various 
charitable  associations  incorporated  in  this  state.  We  find,  also, 
on  reference  to  the  "  Act  Concerning  Prisons,"  that  a  father 
can,  without  consent  of  the  mother,  indenture  his  boys  to  the 
State  Reform  School  §  where  they  will  be  "  subject  to  the  same 
regulations,  employment,  and  restraint,  as  all  other  inmates  of 
said  school."  (Sec.  29.)  There  might,  perhaps,  arise  a  question 
under  the  wording  of  the  statute  regulating  the  giving  away  of 
children  in  adoption,  whether  the  mother's  consent  would  be 
required ;  and,  practically,  the  court  of  probate  would  hardly 
assent  to  such  a  proceeding  contrary  to  her  wishes.  Only  when 
the  husband  becomes  manifestly  unfit,  from  insanity,  intemper- 


*  1  Bl.  Com.,  453!       t  Bay  vs.  Everitt,  7  Mass.,  147.       t  Rev.  Stats.,  317,  Sec.  93. 

§  Rev.  Stats.,  632,  Sec.  26.  The  word  "  parent"  in  this,  and  other  statutes,  is  con- 
strued as  referring  to  the  father  alone,  if  he  is  living ;  if  he  is  not,  and  no  guardian  has 
been  appointed,  to  the  mother. 


HER  WANT  OF  LEGAL  AUTHORITY.  17 


ance,  cruelty  or  the  like,  to  have  control  of  his  children,  can  a 
guardian  be  appointed  having  custody  of  their  persons.  * 

Yet,  notwithstanding  the  wife's  entire  want  of  legal  control 
over  her  children,  her  property  is  in  many  ways  held  liable  for 
their  support.  By  statute,  the  rents,  profits,  and  interest  of  the 
wife's  property  are  liable  to  be  taken  by  legal  process  for  debts 
contracted  by  the  husband  u  for  the  support  of  the  wife  and  her 
children."  \  In  some  cases,  even,  he  may*  use  the  principal  of 
her  property  "  for  the  support  of  the  wife,  or  the  issue  of  their 
marriage."  Our  Supreme  Court  expressly  declare  that  the 
parental  duty  of  the  mother  is  equal  to  that  of  the  father,  in 
regard  to  the  support  of  their  children,  and  that  during  marriage 
it  is  suspended,  or  postponed,  only  because  her  civil  existence  is 
merged  in  that  of  her  husband  and  because  her  property  is  all 
in  his  hands.  \  Even  then,  should  she  have  a  competent  sepa- 
rate estate,  and  her  husband  none,  a  court  of  chancery  would 
decree  a  maintenance  by  the  mother.  § 

Parents  abandoning  and  exposing  their  infant  children  are 
liable  to  punishment  in  the  State  Prison.  || 

II — When  husband  and  wife  live  separate. 

Upon  separation  of  husband  and  wife,  the  former  will  be 
entitled  to  the  custody  of  their  children,  unless  some  positive 
unfitness,  such  as  insanity,  intemperance,  cruel  treatment  or 
abandonment  is  proved  against  him.  The  common  law  justified 
the  father  in  reclaiming  his  child  by  the  harshest  means,  H  and 
even  in  cases  where  the  wife  had  been  obliged  to  leave  him  on 
account  of  his  gross  profligacy.  **     It  is  not  surjmsing  that 

*Rev.  Stats.,  313.       tRev.  Stats.,  304,  Sec.  20.       %Finch  vs.  Finch, 22  Conn.,  411. 

§  Do.  417,  citing  2  Kent  Com.,  192.  ||  Rev.  Stats.,  250,  Sec.  32. 

H  In  the  case  of  Rex  vs.  De  ManneviUe,  tried  before  the  Court  of  King's  Bench  in 
1803,  the  wife  had  separated  from  her  husband,  on  the  ground  of  alleged  ill  treatment, 
and  kept  her  child,  which  was  nursiug,  with  her.  The  husband  got  into  the  house 
where  she  was,  forcibly  seized  the  child,  then  at  the  breast,  and  but  eight  months  old, 
and  carried  it  away  almost  naked,  in  an  open  carriage,  in  inclement  weather.  The  wife 
brought  a  writ  of  habeas  corpus,  but  the  Court  decided  that  the  father  was  entitled  to 
the  custody  of  the  child.    5  East.,  221. 

**  In  Rex  vs.  Greenhill,  (4  A.  &  E.,  624)  the  mother  had  left  her  husband  on  account 
of  his  adultery,  and  sued  for  a  divorce.  She  had  taken  away  her  three  young  girls,  from 
two  and  a  half  to  five  and  a  half  years  of  age,  and  the  husband  brought  a  writ  of  habeas 
corpus  to  obtaiu  possession  of  their  persons  It  was  proved  that  he  was  living  in  adultery 
with  a  Mrs.  Graham,  from  whom  he  refused  to  part <;  while  uncertain  of  a  reconciliation 
with  his  wife."  The  children  were  given  to  the  father,  Lord  Denman  complaisantly 
deciding,  that,  "  although  there  is  an  illicit  connection  between  Mr.  Greenhill  [the  hus- 
band] and  Mrs.  Graham,  it  is  not  pretended  that  she  is  keeping  the  house  to  which  tha 
children  are  to  be  brought,  or  that  there  is  anything  in  the  conduct  of  the  parties  so 
offensive  to  decency  as  to  render  it  improper  that  the  children  should  be  left  under  the 
control  of  their  father." 


18  HER  WANT  OF  LEGAL  AUTHORITY. 


Lord  Denman  was  obliged  to  confess  in  the  House  of  Lords 
that,  "  he  felt  ashamed  of  the  state  of  the  law  and  that  it  was 
such  as  to  render  it  odious  in  the  eyes  of  the  country."  A 
statute  was  subsequently  enacted  granting  English  wives,  living 
separate  from  their  husbands,  right  of  access  to,  and  in  some 
cases  custody  of,  their  children. 

In  frequent  and  late  American  decisions  the  paramount 
authority  of  the  husband  has  been  fully  recognized,  but  the 
mother  has  generally  been  allowed  the  custody  of  infant  chil- 
dren, so  young  that  they  would  be  likely  to  suffer  without  her 
care.  *  In  Connecticut,  where  the  wife  has  sued  for  divorce, 
or  has  attained  a  decree  in  such  a  suit,  or  where  she  is  living 
separate  "  by  reason  of  the  abandonment  or  cruelty  of  the  hus- 
band," the  court  may  grant  her  custody  of  her  children,  f  It 
is  also  provided  by  statute  that  in  case  the  husband  leave  the 
State  and  make  no  suitable  provision  for  his  children,  at  the 
end  of  two  years  after  such  abandonment  a  guardian  may  be 
appointed,  and  his  parental  authority  will  cease.  % 

Our  highest  court  having  decided  in  1853  that,  upon  a  di- 
vorce, mother  and  father  are  equally  liable  for  the  support  of 
their  children,  §  our  state  legislature  passed  an  ^ict  in  the  follow- 
ing year  authorizing  the  court  in  such  case  to  inquire  into  the 
pecuniary  ability  of  the  respective  parties,  and  to  apportion  the 
maintenance  of  children  accordingly.  The  divorced  wife,  as 
well  as  the  widow,  would  unquestionably  be  liable  to  be  treated 
as  a  pauper  and  consigned  to  the  poor  house  as  such,  if  she  failed 
to  mr  uitain  her  children.  || 

One  of  the  greatest  sources  of  annoyance  to  the  wife  living 
apart  is  owing  to  the  fact  that  no  agreement  she  can  make  with 
her  husband,  giving  her  the  custody  of  her  children,  will  bind 
him  so  that  he  cannot  afterward  reclaim  them.  In  Mercein  vs. 
The  People  (3  Hill,  422),  it  was  held  that  a  written  agreement 
to  that  effect  would  not  prevent  the  husband's  changing  his 
mind  and  demanding  restoration  of  his  children. 


*  Johnson  vs.  Terry,  34  Conn.,  259.  Dumain  et  ux  vs.  Givvnne,  10  Alien,  271. 
State  vs.  Richardson,  40  N.  II.,  273.     People  vs.  Mercein,  25  Wend.,  102  ;  3  Hill,  412. 

t  Rev.  Stats.,  307,  Sees.  38  and  39.  In  such  case,  also,  the  power  of  appointing  a 
testamentary  guardian,  devolves  on  the  wife.    (Revised  Stats., 314,  Sec.  73). 

t  Pub.  Acts  '66— '68,  17.  §  Finch  vs.  Finch,  above  cited. 

||  Rev.  Stats.,  621,  Sec.  19. 


THE  WANT  OF  LEGAL  AUTHORITY.  19 


III — The  authority  of  a  ctidow  over  her  children. 

Upon  the  death  of  the  husband  the  wife  becomes  liable  for 
the  support  of  their  children,  in  case  they  have  no  property, 
and  even  to  be  treated  as  a  pauper  if  she  fail  to  maintain  them. 
But  her  rights  over  them  are  far  inferior  to  those  of  the  father. 
Minors  over  fourteen  years  of  age,  having  no  father  or  guardian, 
*an  indenture  themselves  without  their  mother's  consent.  *  So 
late  as  1866  our  highest  court  decided  that  a  guardian  had  a 
right  to  the  custody  of  the  child  in  preference  to  its  mother,  f 
Guardians  may  be  appointed  by  the  father  by  will  (Sec.  73)  ; 
by  the  court  of  probate ;  or  by  choice  of  the  minor,  if  of 
sufficient  age,  ratified  by  the  court  of  probate  (Sees.  65  and  66).$ 
Guardians,  so  appointed,  have  the  same  power  of  indenturing 
their  wards  to  the  State  Reform  School,  and  to  masters,  without 
consent  of  the  mother,  that  the  father  would  have  had  if  alive. 
While  it  is  expressly  provided  that  the  father  and  master  shall 
not  be  deprived  of  their  control  of  the  persons  of  their  children, 
or  apprentices,  by  the  appointment  of  a  guardian  (Sec.  69),  no 
provision  is  made  in  this  State,  as  in  Massachusetts,  to  secure 
the  mother  any  such  right.  Nor  is  she  allowed  in  this  State, 
as  in  most  whose  statutes  we  have  examined,  any  legal  prefer- 
ence over  others  who  may  apply  for  guardianship  of  her  chil- 
dren. In  short,  the  power  of  a  widow  over  her  children  would 
seem  to  be  little  more  than  that  of  any  other  person  in  whose 
hands  they  might  chance  to  remain  at  their  father's  death.§  It 
is  doubtful  whether  any  of  the  many  species  of  common  law 
guardianship  are  recognized  in  her  favor  by  the  laws  of  Con- 
necticut.! While  maintaining  them,  she  is  unquestionably 
entitled  to  their  services,  obedience,  and  to  the  wages  they  earn  ; 
but  she  can  not  assign  their  services  to  a  third  person,  as  a 
father  has  the  right  to  do.H  "  If  it  be  intended  to  declare,"  say 
the  court  in  a  late  case,  "  that  the  mother  is  entitled  to  the 
earnings  of  a  minor  child  in  the  same  manner  as  the  father 


*  Rev.  Stats. ,  317,  Sec.  94.  t  Macready  vs.  Wilcox,  33  Conn. ,  321. 

%  Until  the  passage  of  a  late  act  (Stats.- 1870,  p.  463,)  guardians  were  appointed  with- 
out even  notifying  the  mother. 

§  Except  in  appointing  a  testamentary  guardian,  or  where  the  word  "  parent"  occurs 
in  a  statute  and  no  guardian  has  been  appointed. 

H Judge  Swift  affirms  positively  that  "  the  mother  is  never  considered  as  the  guardian 
of  her  children,  unless  it  be  of  nursed  children,  till  the  age  of  seven  years"  (Sw.  Dig.  50) ; 
and  Judge  Dutton  adds  in  his  edition  of  that  work,  "  this  proposition  has  been  quoted 
with  apparent  approbation  by  Chief  Justice  Hosmer"  (Klitie  vs.  Becbe,  6  Conn.,  500). 

IT  2  Bish.  Mar.  &  Div.,  Sec.  528. 


20 


HER  WANT  OF  LEGAL  AUTHORITY. 


while  alive,  was  entitled  to  them,  the  position  cannot  be  sus- 
tained."* 

In  case  a  widow  marries,  her  second  husband  is  not  liable  for 
the  support  of  his  step-children,  and  the  mother  loses  whatever 
right  she  may  have  before  had  to  the  custody  of  the  children 
of  her  former  marriage.  "  That  right,"  says  a  New  Hampshire 
court,  "  is  wholly  lost  and  disappears  where  the  mother  surviv- 
ing, has  by  a  second  marriage  surrendered  that  legal  discretion 
which  is  necessary  to  render  the  parental  control  of  benefit  to 
the  child."  t 

IV —  Criminal  liability  of  the  mother  if  she  inter- 
fere WITH  THE  LEGAL   CUSTODIAN  OF  HER  CHILDREN. 

Persons  having  the  legal  custody  of  children  are  protected  in 
their  rights  by  the  severest  penal  laws,  which  may,  it  would 
seem,  be  enforced  against  the  mother  as  well  as  against  any 
stranger  who  should  interfere  with  those  rights.  Should  any 
person  "eloign,"  or  entice  away  an  apprentice  from  the  service 
of  his  master,  they  become  liable  to  fine,  and  to  imprisonment 
in  the  common  jail.  A  still  severer  statute  prevents  the 
enticing  away  or  concealing  of  children  from  the  father,  guard- 
ian, master,  charitable  institution,  or  adopted  parent,  who  may 
have  a  legal  right  to  their  custody.t 

V —  The  peculiar  harshness  of  the  law  of  Connec- 
ticut. 

Not  only  has  the  father  or  guardian  been  authorized,  in  many 
cases,  to  deprive  the  mother  of  the  society  of  her  children, 
without  her  consent,  and  without  any  misconduct  on  her  part ; 
not  only  is  the  right  of  the  widowed  mother  in  her  children 
unrecognized  in  our  legislation ;  but  to  the  severity  of  the  com- 
mon law  are  added  certain  peculiar  features,  resting  on  our 
statutes  and  decisions,  which  materially  increase  her  legal  re- 
sponsibilities, and  yet  give  her  no  additional  rights.  By  common 
law  she  was  only  responsible  for  the  support  of  her  children 
when  she  had  the  means  for  their  maintenance.  By  our  statute, 
whenever  she  becomes  free  to  act,  by  the  death  of  her  husband, 


*  Pray  vs.  Gorham,  31  Me.,  242.  t  State  vs.  Scott,  10  Foster,  277. 

+  "  Every  person  who  shall  wilfully  and  maliciously  lead,  take  or  carry  away,  or 
deco}-,  or  entice  away,  any  child  under  the  age  of  twelve  years,  with  intent  to  detain  or 
conceal  such  child  from  its  parent,  guardian,  or  other  person  having  the  lawful  charge 
or  custody  of  such  child,  shall  suffer  imprisonment  in  the  Connecticut  state  prison,  for 
a  term  not  less  than  two  nor  more  than  five  years.*'    (Rev.  Stats.,  250,  Sect.  31.) 


HER  WANT  OF  LEGAL  AUTHORITY.  2\ 

divorce  from  liim,  or  otherwise,  she  becomes  liable  to  imprison- 
ment in  the  poor-house,  unless  she  support  them,  although  she 
has  no  property  whatever.  Then,  too,  by  the  decision  of  our 
highest  court,  she  is  declared  equally  responsible  for  their  sup- 
port with  the  father,  *  contrary  to  the  rule  of  the  common  law, 
as  was  conclusively  shown  by  Judges  Ellsworth  and  Storrs  in 
their  dissenting  opinion  in  that  case*  and  contrary  to  the  usual 
practice  in  this  country,  as  appears  from  Professor  Parsons' 
work  on  Contracts,  f  Our  courts  and  legislators  seem  to  have 
forgotten  that  if  the  mother  is  to  be  saddled  with  equal  respon- 
sibilities with  the  father,  she  ought  to  have  some,  at  least,  of 
his  rights ;  that  the  law  which  enables  the  father,  the  guardian, 
the  master,  the  charitable  institution,  and  even  the  State  Reform 
School,  to  tear  the  child  from  her  arms,  cannot  justly  punish  her 
■with  imprisonment  in  the  alms-house  should  it  come  to  want. 

Least  of  all  does  it  seem  just  that  if  the  mother,  with  nature 
tempting  her  so  strongly,  should  entice  away  her  children, 
M  with  intent  to  detain  or  conceal"  them  from  any  of  those  to 
whom  the  law  may  give  their  custody,  she  should  be  sentenced 
to  the  State  Prison  not  less  than  two  years ! 


The  Law  of  Parent  and  Child  is  a  very  characteristic  branch 
of  the  Law  of  Marriage.  That  beautiful  relation,  that  "mother- 
hood" upon  which  has  been  built  so  much  of  the  rhetoric  of  the 
modern  advocates  of  woman's  subjection,  seems  to  have  been 
overlooked  by  our  law-makers  in  their  desire  to  secure  the 
absolute  authority  of  the  husband  and  father.  It  is  a  tie  that 
he  can  break  at  pleasure,  and  which,  after  his  death,  lies  com- 
pletely at  the  mercy  of  the  testamentary  guardian,  and  of  the 
judge  of  probate.  If  the  father  tires  of  the  support  of  his 
children,  he  may  send  them  out  to  service,  indenture  them  to  a 
master,  or  "  surrender"  them  to  the  charitable  association,  with- 
out the  mother's  consent.  If  father  and  mother  disagree,  and 
a  son  takes  the  part  of  the  mother,  the  father  may.  in  effect,, 
sentence  him  to  the  Reform  School,  to  herd  with  the  criminals 
in  that  institution  :  or.  after  depriving  the  mother  of  the  society 
of  her  children  during  his  life,  he  may,  by  will,  leave  the  legacy 


*  "  As  a  -wife,  this  plaintiff  was  not  legally  bound  to  maintain  their  children  ;  as  a 
parent,  she  is,  equally  \riih  the  father."    (Finc/i  \s.  Fi?ich,  22  Conn.,  417.) 

t  voi  i,  p.  30a 


22  HER  WANT  OF  LEGAL  A  UTHORITY. 


of  his  spite  to  a  testamentary  guardian.  Then,  upon  the  death 
of  the  father — no  superior  right  of  indentured  master,  charita- 
ble association,  State  Reform  School,  or  testamentary  guardian, 
supervening — the  mother  may  apply  to  the  court  of  probate 
(before  which  she  has  no  legal  preference)  for  the  guardianship 
of  her  own  children.  If  they  are  girls  twelve  years  of  age,  or 
over,  or  boys  of  fourteen,  they  may  choose  their  own  guardians. 

If  under  that  age,  the  mother  will,  by  ou»  usual  practice,  at 
last  attain,  while  they  remain  within  the  limits  of  the  State,  to 
some  real  authority  over  the  children  she  has  borne  and  nur- 
tured, and  whom  she  is  compelled  by  law  to  support.  Should 
the  court  of  probate  refuse  her  request,  or  should  she  be  living 
apart  from  her  husband,  by  divorce,  or  by  reason  of  his  cruelty 
and  abandonment,  her  rights  as  a  parent  are,  as  we  have  seen, 
of  an  extremely  ill-defined  and  precarious  nature.  And,  finally, 
by  a  re-marriage  she  may  forfeit  all  legal  right  to  the  custody 
of  her  children,  and  lose  all  power  to  contribute  to  their  support. 

The  neglect  with  which  the  law  treats  the  mother  seems 
even  more  cruel  than  its  harshness  towards  the  wife.  It  gives 
each  infinite  duties  and  infinitesimal  rights ;  but  when  we  re- 
member how  much  more  her  children  cost  the  mother  than  the 
father,  we  cannot  but  feel  indignant  that  so  much  of  the  gush- 
ing tenderness  of  conservatism  should  have  found  its  way  into 
poetry,  so  little  into  the  statute  book.  We  look  there  in  vain 
for  anything  approaching  a  thorough  reform.  What  slight  alle- 
viations of  any  moment  our  assembled  male  wisdom  has  yet 
devised,  are  to  be  found  in  two  sections  of  our  much  abused 
law  of  divorce. 


III.— THE  WIFE'S  PROPERTY. 


At  common  law  all  the  personal  or  moveable  properly  owned 
by  the  wife  at  the  time  of  the  marriage,  or  which  accrued  to 
her  subsequently,  became  the  husband's  absolutely;  and  he  was 
entitled  to  the  use  of  all  her  real  or  immovable  property  (land, 
houses,  &c.,)  during  the  continuance  of  the  marriage  in  any 
event,  and,  in  case  of  the  birth  of  living  issue,  during  his  life. 
So,  too,  all  debts  due  to  her  became  his  when  realized  by  col- 
lection ;  and,  in  like  manner,  he  became  responsible  for  all 
debts  due  from  her,  and  might  be  sued  therefor  at  any  time 
during  the  continuance  of  the  marriage,  but  not  afterwards. 
All  debts  due  from  the  husband  to  the  wife  before  marriage 
were  extinguished  the  moment  the  parties  entered  into  that 
relation.  Courts  exercising  what  is  called  equity  jurisdiction, 
however,  allowed  property  to  be  secured  by  marriage  settlement, 
by  gift,  or  by  will,  to  the  sole  and  separate  use  of  the  wife, 
apart  from  any  control  of  the  husband,  usually  with,  but  in 
some  cases  without,  the  intervention  of  a  trustee.  But  no 
property  of  the  wife  was  ever  considered  m  equity  her  separate 
estate,  unless  by  express  provision  of  the  settlement,  convey- 
ance, or  will,  the  husband  was  deprived  of  his  customary 
interest  in  that  property.  * 

I — The  wife's  property  under  our  present  law. 
/  It  has  not  been  the  design  m  Connecticut,  as  in  most  States 
where  reforms  of  the  old  law  of  marriage  have  been  attempted, 
to  give  the  wife  greater  control  over  her  property  than  she  had 
at  common  law,  but  merely  to  secure  to  her  and  her  children  a 
maintenance  out  of  it,  and  to  secure  them,  also,  the  reversion 
of  the  principal  after  the  death  of  the  husband.  The  legislature 
began  its  modifications  of  the  common  law  in  1845,  by  exempt- 
ing the  husband's  interest  in  his  wife's  real  estate  from  attach- 
ment for  his  debts.    In  1846,  her  wages  were  also  exempted 

*  "  The  conveyance  may  be  to  trustee?,  for  the  use  and  benefit  of  the  wife,  or  directly 
to  the  use  of  the  wtfe,  and  then,  if  necessary,  the  law  will  consider  the  husband  to  be 
trustee.  When  the  conveyance  is  directly  to  the  wife,  it  must  be  expressed  to  be  to  her 
separate  use,  or  equivalent  words  must  be  used.  No  precise  form  of  words  is  necessary  ; 
it  will  be  sufficient  if  the  conveyance  show  it  was  intended  that  the  husband  should 
nave  no  interest/'   2  Sw.  Dig.,  136. 


24 


THE  WIFE'S  PROPERTY. 


from  attachment,  and  payment  of  such  wages,  or  of  the  invest- 
ments thereof,  to  her  personally,  were  made  valid.  *  In  1849, 
a  statute  similar  to  the  one  now  in  existence  was  passed  regarding 
the  wife's  personal  property,  limited,  at  that  time,  to  such  as 
came  to  the  husband  in  her  right  by  inheritance,  during  the 
marriage.  During  the  ten  years  following,  the  provisions  of 
this  statute  were  extended  to  all  property  owned  by  the  wife  at 
the  time  of  marriage,  or  accruing  to  her  from  any  other  source 
whatsoever.  During  the  past  ten  years  no  changes  of  any 
importance  have  been  effected,  except  the  passage  of  an  act  in 
the  interest  of  the  husband,  exonerating  him  from  any  responsi- 
bility for  any  debts  contracted  by  the  wife  before  marriage,  and 
of  a  statute  in  the  interest  of  the  wife's  separate  creditors 
allowing  them  to  sue  her  at  law.  We  briefly  summarize  the 
existing  law  as  follows  : 

The  husband  is  still  entitled  to  the  possession  of  all  his  wife's 
personal  property  (except  such  as  may  have  been  placed  to  her 
"sole  and  separate"  use  in  the  hands  of  a  trustee).  He  is 
entitled  to  the  income  of  that  property  during  his  life,  and  his 
interest  is  not  liable  to  attachment  except  for  debts  contracted 
for  the  support  of  his  w7ife  and  her  children.  Should  he  squander 
the  principal  of  his  wife's  estate,  she  may  compel  him  to  give 
bond  securing  her  reversionary  interest,  or  to  allow  the  appoint- 
ment of  a  trustee  in  his  place.  Should  he  fail  to  maintain  his 
wife  and  children  in  a  suitable  manner,  and  also  divert  the 
income  of  her  property  from  their  support,  he  will  not  only  be 
deprived  of  the  custody  of  such  property,  but  of  his  life  interest 
therein. 

The  husband  may,  at  his  pleasure,  convey  his  interest  in  his 
wife's  real  estate  to  a  stranger  for  the  term  of  his  life,  or  less, 
(if  living  issue  has  been  born  of  the  marriage)  but  he  cannot 
sell  or  transfer  her  personal  property,  or  even  his  interest 
therein,  without  her  joining  in  a  written  conveyance  thereof. 
It  is  not  a  little  remarkable,  however,  that  if  the  wife  join  in  a 
deed  of  her  real,  or  in  a  transfer  of  her  personal  property,  the 
power  of  the  husband  over  the  proceeds  becomes  materially 
greater  than  it  was  over  the  property  while  in  its  original  form. 
In  case  of  the  sale  of  real  estate,  unless  the  wife  insists  upon 
the  investment  of  the  proceeds  in  her  own  name  they  would 


*  But  by  our  present  statute  the  wife  would  seem  to  receive  such  wages  only  as  the 
agent  of  her  husband  (Rev.  Stats.,  303,  Sec.  19),  to  whom  sho  may  be  compelled  to  pay 
them  over  (See  SherwoodYS.  Sherwood,  32  Conn.,  1,  hereafter  cited). 


THE  WIFE'S  PROPERTY. 


25 


seem  to  become  the  absolute  property  of  the  husband  as  at 
common  law.*  So  too  should  she  suffer  a  sale  or  transfer  of 
her  personal  estate,  he  may  expend  the  whole  of  the  proceeds 
"  for  the  support  of  the  wife,  or  the  issue  of  their  marriage," 
without  her  consent,  or  may,  with  her  written  assent,  dispose  of 
them  in  any  other  manner  whatsoever,  thus  absolutely  defeating 
her  reversionary  interest. 

The  provision  of  the  common  law  which  gave  the  wife  power 
to  act  as  a  single  woman  in  case  her  husband  was  a  non-resident 
alien,  banished,  or  transported,  has  been  extended  by  our  statute 
to  all  cases  of  abandonment.  She  thereby  becomes  entitled  to 
the  custody  of  her  property,  and  to  transact  business  in  her  own 
name.  Nevertheless,  her  temporary  independence  ceases  when- 
ever the  husband  may  choose  to  resume  his  marital  duty  and 
authority.  Even  while  abandoned,  she  cannot  sell  her  real 
estate  except  upon  an  order  of  court  showing  a  total  abandon- 
ment for  at  least  three  years. 

The  husband  may  compel  the  wife  to  give  up  all  her  personal 
property  to  him  by  an  application  to  the  court  for  that  purpose, 
and  she  will  be  imprisoned  for  contempt  should  she  refuse  to 
obey  such  an  order.  In  the  very  recent  case  of  Sherwood  vs. 
Sherwood,  (32  Conn.,  1.)  tried  in  Fairneld  county  in  18G4,  the 
wife  was  imprisoned  in  the  common  jail  for  several  months 
because  she  refused  to  obey  the  order  of  the  Superior  Court 
commanding  her  to  give  up  all  her  personal  estate  to  her  hus- 
band ;  and  she  only  regained  her  liberty  upon  the  legislature's 
granting  her  a  divorce  ! 

II — The  wife's  separate  property. 

The  law  regarding  the  separate  property  of  married  women, 
which  forms  so  important  a  portion  of  English  equity  jurispru- 
dence, has  little  practical  application  to  this  State.  Marriage 
settlements  are  almost  unknown  among  us.  Mr.  Hooker,  our 
State  Eeporter,  declares  that,  "  ante-nuptial  contracts,  either 
from  ignorance  on  the  part  of  the  woman  that  they  can  be  made, 
or  more  often  from  a  feeling  of  delicacy  on  her  part  which 
every  one  can  understand,  are  very  rarely  made.  It  is  the 
belief  of  the  writer,  from  a  somewhat  extended  observation  on 
the  subject,  that  an  ante-nuptial  contract  is  not  entered  into  with 
regard  to  the  wife's  property  in  one  case  in  forty  of  marriages 
where  there  is  a  substantial  property  on  the  part  of  the  wife." 


*  Rev  Stats.j  302,  Sec  13:  Hawley  ts.  Burgess,  22  Conn.,  2S4 ;  Jcnriiiigs  ts.  Davis 
31  Cnn.,  143. 


26 


THE  WlFES  PROPERTY. 


For  a  long  time  our  courts  refused  to  adopt  the  practice  of 
the  English  court  of  chancery  regarding  the  separate  property 
of  married  women,  except  to  a  very  limited  extent,  or  unless 
such  property  was  secured  by  the  intervention  of  a  trustee;  and 
with  the  appointment  of  a  trustee  generally  came  great  restric- 
tions on  the  wife's  independent  control  of  the  estate  so  secured. 
In  fact,  almost  the  only  cases  regarding  separate  estates  that 
have  found  their  way  into  our  reports  are  concerning  gifts  made 
by  husband  to  wife,  or  property  over  which  she  has  exercised 
ownership  by  his  permission.  Nor  does  the  writer  of  these 
articles  recollect  a  single  reported  case  in  which  the  wife  has 
sought  relief  in  a  Connecticut  court,  of  equity  against  her  hus- 
band. Still,  such  a  cloud  of  legal  dust  has  been  raised  over 
the  Connecticut  law  of  marriage  by  constant  reference  to  this 
branch  of  equity  jurisprudence  in  newspaper  discussions,  that 
it  seems  necessary  to  attempt  a  brief  sketch  of  its  provisions, 
and  of  the  course  of  Connecticut  decisions  and  legislation  regard- 
ing it. 

Under  the  English  equity  system  a  married  woman  may 
exercise  almost  the  full  control  of  the  unmarried  woman  over 
her  property,  in  the  following  cases  :  Where,  by  marriage 
settlement  or  by  the  express  terms  of  a  gift  by  will  or  otherwise, 
property  has  been  conveyed  to  the  sole  and  separate  use  of  the 
wife,  or  where  an  absolute  gift  of  property  is  made  to  her  by 
the  husband,  she  is  given,  under  the  apparent  ownership  of  a 
trustee  or  of  the  husband,  full  control  and  power  to  manage 
that  property  as  if  she  were  unmarried  ;  as  regards  real  estate, 
however,  her  control  is  limited  to  its  rents  and  profits,  and  to 
the  disposition  of  it  by  will,  subject  to  the  husband's  right  of 
curtesy  should  he  survive  her.  This  result  is  effected  through 
the  intervention  of  courts  of  equity,  or  chancery  as  they  are 
sometimes  called,  by  which  the  nominal  owner  (husband  or 
trustee)  will  be  compelled  to  make  precisely  such  disposition  of 
the  property  as  the  wife  may  direct,  whether  by  way  of  invest" 
ment,  gift,  or  sale,  and  the  court  will  also  direct  them  to  pay  all 
the  debts  she  has  contracted  on  the  strength  of  such  property, 
and  to  perform  all  contracts  she  has  made  with  reference  to  it. 
In  short,  they  are  merely  her  agents  for  certain  technical  pur- 
poses, without  any  real  power  whatsoever.  The  usual  reason 
for  appointing  a  trustee  is  to  avoid  the  risk  of  a  seizure  of  the 
separate  estate  by  the  husband's  creditors,  to  which  it  would 
seem  to  be  liable  in  certain  cases  if  no  trustee  is  appointed ;  or 
to  avoid  the  risk  of  his  squandering  it  himself,  if  he  is  irrespon- 


THE  WIFE'S  PROPERTY. 


2  7 


sible.  Should  there  be  no  trustee  appointed,  the  husband  will 
hold  the  sole  and  separate  estate  of  his  wife  as  trustee,  subject 
to  her  direction  and  complete  control  like  any  other  trustee.  It 
would  appear,  however,  that  the  income  of  the  separate  proporti- 
on being  paid  over  by  the  trustee,  or  received  by  the  wife, 
becomes  the  absolute  property  of  the  husband  at  law,  and  even 
in  equity  he  will  not  be  compelled  to  account  for  it  unless  the 
wife  is  living  apart  from  him,  or  objects  to  his  receiving  it.  * 

In  most  States,  recent  legislation  recognizing  the  rights  of 
married  women  has  taken  the  form  of  an  extension  of  the 
English  equity  rules,  so  as  to  make  all  the  property  of  the  wife 
her  separate  estate.  The  nominal  ownership  of  trustee  or  hus- 
band is  also  dispensed  with,  and  the  Wife  has  substantially  the 
same  control  of  her  property  after  marriage  as  before.  In 
Connecticut,  as  we  have  seen,  the  course  of  legislation  has  been 
far  different ;  and  our  law  now  allows  the  separate  property  of 
the  wife  to  be  attached  at  law  for  her  separate  debts  as  well  as 
in  certain  cases  for  the  debts  of  her  husband,  without  enlarging 
her  control  over  it.  J 

The  early  decisions  of  our  courts  were  hostile  to  the  separate 
property  system.  In  1804,  it  was  decided  in  the  case  of  Dibble 
vs.  Hutton,  (1  Day,  221,)  that  the  English  chancery  practice 
which  allowed  the  wife  to  hold  separate  property  without  the 
intervention  of  a  trustee,  u  ought  not  to  be  engrafted  into  our 
chancery  system."  This  case  arose  in  reference  to  a  gift  from 
husband  to  wife,  and  exceptions  to  its  sweeping  dicta  were  soon 
allowed ;  but  the  chief  point  in  issue  was  deemed  settled  law. 
Even  so  late  as  1843,  in  a  similar  case,  Chief  Justice  Church 
expresses  his  approval  of  the  decision  of  the  court  in  Dibble  vs. 
Hutton,  in  the  most  emphatic  terms.t  Thirteen  years  later,  in 
1856,  the  legislature  having  in  the  meantime  interfered  with 


*  Wintnn  vs.  Barnum,  19  Conn.,  175,  citing  English  cases  with  approval.  Morgan  vs 
Thames  Bank,  14  Conn  ,  99.    Clancy;s  Rights  of  Married  Women,  353. 

t  Stats.,  1S69,  page  340.  Property  given  by  the  husband  to  the  separate  use  of  the 
wife  after  marriage  is  undoubtedly  liable  to  attachment  for  his  debts,  and  it  would  seem 
doubtful  whether  in  case  of  separate  personal  property  coming  to  the  wife  from  any 
other  source,  a  creditor,  entitled  to  an  attachment  under  the  20th  section  of  our  statute 
vRev.  Stats.,  304)  would  be  affected  by  the  wife's  merely  equitable  separate  interest.  See 
Winton  vs.  Barnum,  19  Conn.,  175. 

+  "  The  court  there  seemed  to  fear,  tbat  the  innovations  which  courts  of  equity  in 
England  were  making  upon  the  sacred  unity  of  the  persons  of  husband  and  wife,  might, 
as  manners  should  lead  the  law,  and  law  the  manners,  invade  our  own  jurisprudence  ; 
and  against  such  an  event  they  intended  to  protect  us.  If  more  loose  or  liberal  views 
of  the  nature  and  legal  effect  of  the  marriage  relation  have  been  entertained  in  later 
times,  either  by  the  legislature  or  the  public,  until  they  shall  be  made  to  bear  upon  the 
courts  by  some  definite  legislative  act,  we  must  abide  by  the  rules  of  the  common  law, 
which  were,  without  doubt,  recognized  by  all  as  long  ago  as  the  time  of  the  transaction 
in  question.'-    Fourth  Society  vs.  Mather,  15  Conn.,  599. 


28 


THE  WIFE'S  PROPERTY. 


various  acts  for  the  protection  of  the  property  of  married  wo- 
men, and  the  English  equity  rule  having  been  sanctioned  in 
most  States  and  adopted  in  our  own,  our  Supreme  Court  over- 
ruled the  old  case  of  Dibble  vs.  Button ;  *  but  it  is  not  a  little 
amusing  to  find  the  court,  in  the  same  decision,  deprecating  as 
dangerous  innovations  statutes  now  universally  considered  as 
falling  far  short  of  the  just  rights  of  married  women,  f  A  series 
of  Connecticut  decisions,  commencing  a  few  years  before  the 
case  of  Riley  vs.  Riley,  placed  our  law  fully  abreast  of  the 
English  chancery  system  in  regard  to  the  wife's  right  to  hold 
separate  property.  Unfortunately,  our  legislatures  have  never 
kept  pace  with  the  increasing  liberality  of  our  courts  in  that 
direction.  The  General  Assembly  of  1850,  indeed,  seemed 
inclined  to  follow  the  equity  rather  than  the  common  law  theory 
regarding  the  property  of  married  women,  and  a  few  provisions 
of  comparatively  slight  importance,  made  by  that  legislature, 
still  remain  on  the  statute  book ;  but  the  general  tendency  has 
been  heavily  the  other  way ;  and  the  equity  system  of  separate 
property  rights  for  married  women  has  never  been  materially 
extended  by  our  legislature. 

Ill — The  interest  of  the  survivor,  on  tite  death 

OF  HUSBAND   OR  "WIFE,  IN  THEIR  RESPECTIVE  ESTATES. 

In  case  of  the  death  of  the  wife,  the  husband  continues  in 
possession  of  her  real  estate  during  his  life,  provided  living 
children  have  ever  been  born  of  the  marriage,  whether  they 
survive  or  not.  This  interest  is  known  in  law  as  the  husband's 
estate  by  curtesy,  and  he  will  have  that  right  even  in  land  held 
for  the  separate  use  of  the  wife.  By  our  statute  the  husband 
is  also  entitled  to  the  use  of  all  his  wife's  personal  property 
during  his  life,  excepting  her  separate  personal  estate.  %  These 
rights  of  the  husband  cannot  be  affected  by  any  action  of  the 
wife.  She  may,  indeed,  make  a  will,  but  it  will  only  affect  the 
reversion  of  her  estate  after  her  husband's  life  interest  has 
ended. 


*  Riley  vs.  Riley,  25  Conn.,  164.  '*  That  case,"  says  Judge  Ells-worth,  "  is  an  anomaly 
in  the  law  ;  and  its  doctrine  is  not  at  this  time,  nor  was  it  then,  altogether  satisfactory 
to  the  profession  .  and  further  it  has  been  so  materially  encroached  upon  and  modified 
by  more  recent  decisions  of  this  court,  and  more  especially  assailed  by  the  wide  spread 
sentiment  of  the  community  and  the  legislation  of  this  and  other  states,  that  the  doc- 
trine of  the  case  is  viewed  as  an  illiberal  and  obsolete  relic  of  the  ancient  iaw  of  baron 
and  feme."1 

I  "  Whether  the  statute  law  has  not.  in  its  desire  to  protect  the  property  of  the  wife 
as  if  it  was  all  to  be  to  her  ultimate  sole  and  exclusive  use,  carried  the  doctrine  too  far 
and  given  to  the  wife  too  much  individuality,  we  will  not  enquire  :  experience  will  be 
our  best  instructor.*'    Do.,  165.  +  Baldwin  vs.  Curter,  17  Conn.,  208. 


THE  WIFE'S  PROPERTY.  29 

The  wife,  on  the  other  hand,  only  receives  the  use  of  a  third 
of  her  deceased  husband's  real  estate,  and  not  even  that,  unless 
she  was  living  with  him  at  the  time  of  his  death,  or  absent  for 
legal  cause.  This  right  is  called  the  widow's  estate  in  dower. 
In  England,  and  in  nearly  all  the  States  of  this  Union,  this 
right  is  secured  by  allowing  the  widow  dower  in  all  the  real 
property  her  husband  owned  at  any  time  during  marriage, 
unless  she  has  joined  him  in  deeding  it  away.  By  a  harsh 
peculiarity  of  Connecticut  law,  she  is  only  entitled  here  to 
dower  in  the  real  estate  of  which  he  died  possessed ;  so  that  he 
has  only  to  convert  his  real  property  into  personal  during  his 
lifetime,  or  to  make  final  disposition  of  it  by  deed  instead  of  by 
will,  reserving  a  life  use  of  it,  to  cut  off  her  right  altogether.  * 
The  widow  is  entirely  dependent  on  the  good  will  of  the  hus- 
band for  whatever  she  receives  from  his  estate  beyond  her 
dower.  If  he  leaves  no  will,  she  becomes  heir  to  one-third,  or, 
if  he  leave  no  lineal  descendants,  to  one-half  of  his  personal 
property.  The  law  breaks  over  its  usual,  sound  policy,  to  allow 
the  husband  to  place  a  singular  restriction  on  her  future  mode 
of  life.  Ordinarily,  conditions  foi  the  restraint  of  marriage 
attached  to  gifts,  or  contained  in  agreements,  are  held  to  be  void, 
as  contrary  to  public  policy.  A  husband,  however,  may  leave 
property  to  his  widow  with  a  condition  forbidding  her  re-mar- 
riage attached ;  and  Judge  Daggett  justifies  this  extremely 
common  meanness  on  the  part  of  the  husband  in  the  following 
curious  train  of  reasoning  (italics  ours)  : 

ft  It  would  seem  very  reasonable,  that  a  man  leaving  a  widow 
with  seven  children,  as  in  the  present  case  case,  should  be  per- 
mitted to  encourage  her,  by  suitable  provision  in  his  will,  to 
remain  single,  and  not  subject  his  own  offspring  to  the  probable 
evils  of  a  step-  father,  to  waste  her  substance,  and  thereby  render 
her  less  able  to  support  and  educate  them."  f 

If  the  normal  condition  of  woman  is  that  of  dependence  on 
man,  is  not  the  forcing  independence  upon  her,  when  she  has 
not  only  herself  but  seven  children  to  support,  a  rather'  poor 
style  of  "encouragement?"  A  widower  with  seven  children 
soon  begins  to  look  out  for,  and  his  friends  to  suggest,  another 
wife,  to  take  care  of  those  children  and  stop  "  the  waste  of  his 

*  In  the  case  of  Stewart  vs.  Stewart,  a  man  executed  a  deed  conveying  all  hia  real 
estate  to  his  children,  and  put  it  into  the  hands  of  a  third  person,  to"  be  delivered  to 
them  on  his  death.  On  the  happening  of  that  event,  about  two  years  afterward,  the 
deed  was  delivered,  and  it  was  decided  that  it  cut  off  the  widow's  dower.    5  Conn.,  317. 

t  Phillips  vs.  Medbury,  7  Conn.,  576. 


80 


THE  WIFE'S  PROPERTY. 


substance."  Now  if  the  male  is  the  natural  "  bread-winner"  for 
both  sexes,  how  happens  it  that  a  step-mother  is  such  a  nice 
thing  to  have,  and  a  step-father  such  a  nuisance,  in  a  bereaved 
family  ? 


The  harshness  of  the  common  law  toward  married  women, 
and  the  injustice  of  its  provisions  regarding  their  property,  are 
universally  conceded.  The  modern  legislation  of  Connecticut 
on  that  subject  is  indeed  an  improvement,  in  that  it  does  recog- 
nize the  principle  that  a  married  woman  may  have  property 
rights ;  but,  as  a  system,  it  is  irredeemably  vicious,  from  the 
fact  that  it  is  based  on  the  common  law  theory  of  dependence. 
Connecticut  is  to-day  practically  behind  England  in  that  regard. 
The  wealthier  classes  in  that  country  have  not  only  contrived 
the  semi-independence  of  the  separate  property  system,  but 
they  take  full  advantage  of  that  system.  Here,  the  long  oppo- 
sition of  our  courts,  and  the  continued  neglect  of  our  legislature, 
have  prevented  it  from  ever  taking  root  in  the  habits  of  society. 
Other  States  of  the  Union,  improving  upon  the  old  equity  sys- 
tem, have  granted  their  married  women  an  independent  control 
of  their  property  far  exceeding  that  conceded  in  England,  yet 
we  hear  no  complaint  of  its  practical  workings.  Can  it  be 
longer  denied  that  reform  took  a  wrong  direction,  with  us,  in 
1849  ?  Having  two  existing  models  before  us — that  of  the  old 
common  law,  based  on  dependence,  and  that  of  the  equity  law 
with  its  underlying  principle  of  independence — we  chose  the 
worse.  Our  want  of  familiarity  with  the  latter  and  better 
system  easily  accounts  for  our  mistake  ;  but,  in  view  of  the 
great  progress  society  and  legislation  have  since  been  making, 
our  continuance  in  that  error  is  inexcusable. 

Aside  from  the  fundamental  defect  at  the  root  of  existing 
legislation  there  are  many  serious  faults  of  detail.  While  con- 
tinuing the  wife's  dependence,  the  present  law  professes  to  offer 
her  protection  ;  but  it  turns  out,  on  examination,  that  the  pro- 
tection offered  is  of  the  most  imperfect  description.  No  trustee, 
executor,  parent,  or  guardian,  can  take  possession  of  the  prop- 
erty of  his  trust  without  first  executing  a  bond  to  secure  the 
faithful  performance  of  his  duty,  and  then  filing  in  court  an 
exact  inventory  of  the  property  received.  The  husband,  how- 
ever, though  named  "  trustee"  in  the  statute,  takes  the  property 
of  his  wife  on  marriage,  without  giving  any  bond  to  secure  its 
safe  custody,  or  returning  any  inventory  to  show  its  amount. 


THE  WIFE'S  PROPERTY. 


31 


Starting  in  married  life  without  any  security  for  her  husband's 
performance  of  his  trust,  the  wife  can  only  attain  such  security 
through  the  subsequent,  hostile  proceeding  of  a  petition  against 
him  in  court — a  mode  of  legal  defence  excellently  calculated  to 
"  shut  the  stable  door  after  the  horse  is  stolen,"  or  to  begin  a 
family  quarrel  which  may  only  end  in  the  divorce  court.  The 
evil  effect  of  giving  the  husband  a  life  estate  in  the  wife's  prop- 
erty, instead  of  a  true  trusteeship,  is  forcibly  set  forth  by  Mr. 
Hooker : 

"  Whatever  the  husband  by  a  parsimonious  support  of  his 
family  could  save  out  of  the  income  of  her  property  would  of 
course  be  his  own.  and  he  could  thus  by  degrees  be  laying  up  a 
private  property  for  himself.  There  is,  therefore,  a  constant 
temptation,  if  the  husband  is  selfish  or  meanly  inclined,  to  be 
stingy  in  the  expenditure  of  the  income  for  his  family  so  that 
he  may  be  making  a  fortune  for  himself.  Hardly  any  con- 
trivance of  the  law  could  have  been  better  adapted  to  create  a 
state  of  irritation  between  the  husband  and  the  wife.  She  is 
treated  by  the  law  as  still  owning  her  property  while  she  can 
receive  only  such  benefirof  it  as  her  husband,  at  his  own  dis- 
cretion, and  without  regard  to  her  wishes,  may  choose  to  give 
her. 

"  No  one  can  fail  to  see  the  injustice  of  the  law,  and  I  believe 
that  that  injustice  is  felt  more  by  the  women  who  suffer  it  than 
the  really  harsher  provisions  of  the  common  law  Avhich  gave 
the  whole  property  absolutely  to  the  husband,  and  did  not  delude 
and  tantalize  the  wife  with  the  semblance  of  rights." 

So  too  in  the  statute  provisions  regarding  the  re-investment 
of  her  property,  the  husband  has  been  given  the  most  absurd 
latitude  for  over-reaching  the  wife  he  holds  in  tutelage.  Although 
the  husband's  interest  in  the  wife's  real  estate  is  carefully  ex- 
empted from  attachment  in  suits  against  him,  he  still  has  the 
right  to  deed  it  to  a  stranger  for  the  term  of  his  natural  life.  In 
fact,  much  greater  care  is  taken  to  protect  the  wife's  property 
against  the  husband's  debts,  than  against  the  husband  him- 
self; and  it  is  not  surprising  that,  practically,  the  present  law 
cheats  the  married  man's  creditors  oftener  than  it  protects 
his  wife. 

No  argument  can  be  needed  to  demonstrate  the  atrocious 
injustice  of  our  present  law  of  succession  between  husband  and 
wife.  Not  only  does  the  surviving  husband  take  three  times 
H3  much  as  the  surviving  wife,  but  the  former  holds  his 


82 


THE  WIFE'S  PROPERTY. 


interest  securely,  whereas  most,  in  fact  all,  of  the  widow's 
share  is  defeasible  at  the  option  of  the  husband,  and  often 
ta<rfTed  with  a  degrading  prohibition  of  re-marriage.    The  com- 
mon  law  presents  a  very  humiliating  contrast  in  that,  as  in 
most  respects   regarding   marriage,  with  the  corresponding 
branch  of  the  jurisprudence  of  Continental  Europe.    Just  as 
every  traveler  observes  the  selfish  brutality  of  the  English  as 
compared  with  the  French  or  German  husband  of  the  lower 
class,  the  lawyer  cannot  but  be  struck  with  the  harshness  of 
the  common  law  (intensified  as  it  is  in  Connecticut  by  our 
peculiar  law  of  dower)  as  compared  with  the  Continental  system 
of  community  of  profits  between  husband  and  wife.  The  Anglo- 
American  has  a  sovereign  contempt  for  everything  Spanish- 
American.    Nevertheless  we  must  look  to  some  of  our  States 
whose  law  of  marriage  was  derived  from  that  of  Spain  for  the 
only  just  and  equal  rule  of  succession  between  husband  and, 
wife  to  be  found  in  this  country.    In  those  States,  though  their 
laws  differ  considerably  in  detail,  the  fundamental  idea  is  that 
of  the  settlement  of  the  affairs  of  a  business  firm,  upon  the 
death  of  one  of  the  partners.     The  capital  originally  con- 
tributed to  the  general  stock  by  the  respective  parties  goes 
back  to  the  one,  or  to  the  heirs  of  the  one,  from  whence  it 
came.    Unless  otherwise  provided  by  agreement  before  mar- 
riage, the  husband  has  no  preference  over  the  wife  in  the 
remainder  of  the  estate,  called  the  acquests,  and  consisting  of 
property  acquired  during  the  marriage  from  the  earnings  of 
the  joint  labor  or  capital  of  husband  and  wife.    This  property 
is  treated  as  the  profits  of  a  partnership  between  equals,  and 
not,  as  at  common  law,  as  the  sole  estate  of  a  male  superior. 
We  look  in  vain  through  the  various  tinkering  statutes  of 
States  settled  from  Anglo-Saxon  sources  to  find  any  such  fair 
and  frank  recognition  of  the  wife's  equal  services  with  the 
husband  in  accumulating  an  estate.    The  bulk  of  the  accumu- 
lated property  in  Connecticut  is  acquired,  not  hereditary ;  Con- 
necticut wives  have  done  their  full  share  towards  its  acquisition; 
yet  they  are  given  no  legal  interest  in  such  acquisitions  what- 
soever.   That  despotic,  Catholic  Spain  has  given  us  a  lesson 
of  liberality,  sufficiently  characterizes  the  condition  of  our 
present  law. 


EVIL  RESULTS  OF  THE  WIFE'S  DEPENDENCE. 


The  existing  law  affords  the  tyrannical  husband  every  oppor- 
tunity for  oppression  ;  but  although  public  opinion  has  not  yet 
learned  to  distrust  all  forms  of  dependence,  it  does  hate  down- 
right cruelty.  Hence  the  chief  practical  evils  of  our  law  take 
the  form  of  repression  rather  than  that  of  oppression, — of  a 
denial  to  the  wife  of  that  freedom  of  development  which  is  as 
necessary  to  the  formation  of  the  true  woman  as  to  the  forma- 
tion of  the  true  man. 

With  most  women  the  natural  dependence  of  minority  is 
continued  by  want  of  suitable  employment  till  marriage.  Then 
the  great  majority  of  our  married  women  become  something 
more  than  self-supporting;  they  contribute  their  full  share  to 
the  maintenance  of  a  family,  and  to  the  accumulation  of  an 
estate.  A  few,  of  the  class  which  society  has  relieved  of  all 
domestic  service  without  substituting  any  worthy  employment 
in  its  place,  are  justly  chargeable  with  frivolity,  extravagance 
and  incompetency.  It  is  chiefly  from  observation  of  this  class 
that  conservative  writers  draw  their  hasty  conclusion  of  woman's 
natural  dependence ;  but  the  mass  of  our  married  women  are 
of  no  such  stamp  ;  and,  in  general,  the  Connecticut  wife  labors 
as  hard  as,  and  more  continuously  than,  the  Connecticut  hus- 
band. It  is  a  notorious  fact  that  she  is  frequently  broken  down 
by  hard  labor ;  he,  seldom.  On  what  principle  then  is  she 
deprived  of  full  legal  equality  with  her  husband?  The  just  rule 
of  all  free  society  recognizes  independence  as  the  reward  of 
self-support ;  but  no  sooner  has  the  Connecticut  woman,  by  her 
services  as  a  wife,  earned  her  freedom,  than  the  Law  steps  in 
and  rewards  her  with  servitude.  Then  dependence  has  its 
unavoidable  effect  upon  her.  The  natural  capacities  of  the 
young  wife,  who  is  often  the  superior  of  her  husband  in  intellect 
and  culture,  never  develop.  As  responsibilities  increase,  his 
judgment  strengthens  and  his  views  widen.  Her  acquirements, 
on  the  other  hand,  wither  from  disuse,  her  judgment  is  weak- 
ened and  her  views  are  narrowed  by  ceaseless  attendance  to  a 
routine  of  petty  detail,  and  by  habits  of  reliance  on  the  worldly 


♦ 


34     RESULTS  OF  THE  WIFE'S  DEPENDENCE. 


wisdom  of  her  spouse  and  on  the  spiritual  wisdom  of  her  pastor. 
She  inconsiderately  adopts  and  intensifies  her  husband'.;  political 
and  social  hatreds;  and,  as  the  married  life  progresses,  the 
legal  inferiority  grows  into  a  real  inferiority.  In  cases  of 
peculiar  hardship,  the  wife's  temper  dulls  into  that  of  a  drudge, 
or  sharpens  into  that  of  a  scold  ;  she  submits  servilely,  or  revolts 
noisily  and  unreasonably,  after  the  manner  of  all  subjects  under 
all  despotic  rule.  Thus,  Independence  makes  the  man;  De- 
pendence, the  woman  ;  and  the,]e>ult  is  charged  upon  Nature ! 

In  the  same  proportion  that  the  present  legal  marriage 
relation  tends  to  develop  the  vices  of  subjection  in  the  wife,  it 
tends  to  develop  the  vices  of  dom'nation  in  the  husband.  Just 
as  Louis  XIV  was  the  State  under  the  old  French  law,  the 
husband  is  the  Family  undo"  ours.  This  monstrous  departure 
from  the  fundamental  principle  ~.  free  society  is  justified  on  ihe 
theory  that  the  husband's  authority  is  fo  tempered  by  affection 
as  to  escape  the  usual  danger  of  abu  e.  So  far  as  the  marital 
rule  is  oppressive,  such  is  generally  the  case  ;  but  its  repressive 
influence  cannot  be  thus  modified.  No  amount  of  love  and 
aftec  ion  on  the  part  of  the  jailor  could  make  imprisonment  a 
condhion  favorable  to  human  development.  No  amount  of  love 
1  and  affection  on  the  part  of  the  husband  can  arrest  the  evil 
efFect  of  dependence  upon  the  wife.  It  is  the  fundamental  vice 
of  all  despotic  relations  that  they  pervert  the  powers  that  are 
needed  for  the  individual  development  of  the  inferior,  to  minis- 
ter to  the  vanity  or  the  sellishness  of  the  superior.  AVe  repub- 
licans find  it  difficult  to  understand  how  Stuarts  and  Bourbons 
could  have  been  educated  into  believing  their  personal  interests 
and  prejudices  of  more  importance  than  the  welfare  of  nations  ; 
but  if  some  wives  have  not  made  as  great  egotists  of  their  hus- 
bands, it  is  not  the  fault  of  their  system.  The  prince  by  divine 
right  is  only  worse  than  the  husband  by  divine  right  because 
his  subjects  are  more  numerous,  and  by  sharp  competition 
arrive  at  a  higher  degree  of  servility.  The  feudal  court  of  the 
Family  is  small ;  its  lord  learns  modesty  in  daily  intercourse 
with  equals,  outside;  but  its  constitut'on  i-  as  evil,  its  story  of 
wTong  as  disgraceful,  and  the  publication  of  that  story  as 
seve  ely  repressed,  as  in  those  grander  despotisms  it  is  part  of 
our  ed  i<  ation  to  hate. 

Another  evil  result  of  our  present  law  arises  from  the  fact 
thaf,  by  forcing  the  wife  to  give  the  husband  more  than  he  has 
a  moral  right  to  ask,  it  tends  to  produce  that  ingratitude  on  his 
part,  and  that  disappointment  0:1  hers,  which  are  the  usua 


« 


RESULTS  OF  THE  WIFE'S  DEPENDENCE.  85 


penalty  of  over-generosity.  Love  often  has  most  unaccountable 
beginnings,  but  its  continuance  is  usually  dependent  upon 
esteem  and  respect.  Where  the  law  gives  not  only  the  wife's 
person  but  her  property  and  her  children  unre-ervedly  into  the 
hands  of  the  husband,  such  is  the  frailty  of  human  nature  that 
he  is  extremely  apt  to  undervalue  that  for  which  he  has  not 
paid  the  full  price.  Failing  in  due  gratitude,  he  also  fails  in 
due  esteem  and  respect,  and  so  the  proverbial  devotion  of  the 
lover  is  quickly  succeeded  by  the  proverbial  indifference  of  the 
husband.  Upon  this  rock  the  happiness  of  many  a  marriage  is 
wrecked  at  the  outset.  Nor  can  we  wonder,  when  the  unoffend- 
ing wife  so  often  suffers  that  cruel  humiliation  which  is  the 
notorious  lot  of  the  mistress,  and  finds  that  by  reserving  nothing 
she  lias  not  only  earned  ingratitude,  but  turned  love  into 
contempt. 

If  such  are  not,  in  general,  the  evil  results  of  marriage,  it  is 
because  the  law  is  practically  repudiated,  because  the  husband 
has  wisely  conceded  to  the  wife  the  true  relation  of  an  equal 
instead  of  placing  her  in  the  legal  relation  of  an  inferior.  Such 
is  the  wholesome  tendency  of  our  times  ;  but  the  husbands  who 
do  not  make  a  merit  of  their  concessions,  and  demand  occasional 
obedience,  are  probably  very  few. 

Tn  no  other  domain  is  the  evil  effect  of  woman's  dependence 
more  severely  felt  than  in  that  of  morality.  Personal  pu«rity  is 
the  unquestioned  attribute  of  the  American  female ;  but  not  of 
the  American  male.  Still,  license  does  not  often  assume  with 
us  its  vilest  shape  of  libertinism.  That  species  of  vice,  indeed, 
is  punished  with  a  savageness  peculiar  to  ours,  of  all  civilized 
nations.  A  wise  morality,  therefore,  will  hardly  concern  itself 
with  the  virtue  of  woman,  but  with  the  vice  of  man.  The 
"  social  evil,"  as  it  is  termed,  is  the  one  growing  crime  against 
chastity,  and  the  prevalence  of  that  crime  is  to  be  directly 
traced  to  the  dependence  of  woman.  In  the  first  place,  this 
vice  is  most  common  among  those  classes  in  which  marriage  is 
to  the  female  a  real  as  well  as  a  legal  dependence.  The  farmer, 
laborer,  and  artisan,  are  not  the  chief  sinners  in  this  regard  ; 
but  rather  business  and  professional  men,  clerks,  &c , — in  gen- 
eral, the  classes  which  earn  a  bare  livelihood  in  our  cities.  The 
chief  inducements  to  this  vice  are,  single  life  or  late  marriage  ; 
scarcity  of  female  employment ;  and  the  wife's  powerlessness 
to  enforce  the  prime  condition  of  the  marriage  contract. 

It  is  a  mi  take  to  suppose  that  men  often  remain  single,  or 


36      RESULTS  Of  THE  WIFE'S  DEPENDENCE. 


marry  late,  from  choice.  To  many,  marriage  is  simply  an 
impossibility ;  they  cannot  afford  the  double  or  triple  expense 
of  living  it  necessitates.  In  compelling  such  men  to  unwilling 
celibacy,  society  ensures  their  moral  "  ruin."  The  one  possible 
remedy  for  this  evil  is  through  some  mode  of  enabling  the  wife 
to  contribute  by  remunerative  labor  to  the  support  of  the 
family — through  the  education  of  girls  to  business,  to  professions, 
or  to  trades,  with  the  expectation  that  they  will  continue  in  such 
employment  after  marriage.  This  will  also  remove  the  chief 
stumbling  block  in  the  way  of  the  single  woman's  doing  first- 
class  work — the  expectation  that  with  marriage  such  work  must 
be  abandoned  for  the  comparatively  unremimerative  duties  of 
housekeeper,  seamstress,  and  nurse.  The  introduction  of  ma- 
chinery has  narrowed  the  domestic  sphere,  while  the  progress 
of  refinement  has  increased  its  expense.  Without  here  consid- 
ering the  question  whether  the  province  of  "  wife  and  mother," 
especially  that  parental  duty  which  the  "  husband  and  father" 
so  cheerfully  resigns,  affords  sufficient  scope  for  her  natural 
powers,  it  is  evident  that  the  want  of  economy  of  the  present 
system  is  fast  proving  its  ruin.  Unless  the  co-operative  kitchen, 
the  co-operative  sewing  establishment,  the  co-operative  nursery, 
or  some  conveniences  of  the  sort,  enable  the  educated  wife  to 
earn  the  high  wages  of  skilled  or  intellectual  labor,  infrequency 
of  marriage,  with  its  attendant  vice,  will  prove  an  insoluble 
social  problem. 

The  statistics  of  prostitution  show  that  want  of  employment 
at  living  rates  furnishes  a  large,  if  not  the  largest,  female  con- 
tingent to  this  species  of  vice.  With  freedom  of  action,  and 
with  an  unlimited  sphere  of  employment,  would  vanish  this 
shameful  necessity — the  darkest  blot  on  chri-tian  civilization. 

From  the  fact  that  eligible  husbands,  especially  in  the  upper 
walks  of  life,  are  fewer  than  eligible  wives;  from  the  fact  that 
the  husband  is  expected  to  be  the  ch;ef  support  of  the  family ; 
and  from  the  still  more  controlling  fact  that  celibacy  does  not 
leave  man's  life  so  purposeless  as  it  does  woman's,  it  results 
that  the  parties  tc  the  marriage  relation  do  not  start  upon  any- 
thing like  an  equal  footing.  The  wife  is  in  no  condition  to 
demand  those  terms  to  which  equality  would  have  entitled  her. 
One  terrible  fundamental  unfairness  is  particularly  manifest : 
that  personal  purity  which  is  a  pre-requisite  in  her  case  is  not 
so  in  that  of  the  husband.  The  monstrous  inequality  with 
which  marriage  begins,  increases  with  its  continuance.  Infidel- 
ity on  the  part  of  the  wife  brings  death  to  her  lover,  wor  e  than 


RESULTS  OF  THE  WIFE'S  DEPENDENCE.  37 


death  to  herself ;  but  this  is  no  enforcement  of  chastity — it  is 
only  l  lie  punishment  of  a  trespass  on  vested  rights,  to  which  the 
most  licentious  husband  is  entitled  equally  with  the  most 
virtuous.  So  complete,  on  the  other  hand,  is  the  wife's  depend- 
ence, that  there  grow  up  habits  of  subserviency  which  unfit  her 
for  "vindicating  the  purity  of  the  marriage  relation."  Implicit 
obedience  remains  a  duty  till  the  utmost  limit  of  forbearance 
is  readied.  Then  ehe  is  expected  to  throw  off  the  habits  of 
years,  and  to  fight  a  great  battle,  under  every  disadvantage, 
against  one  to  whom  she  has  been  taught  to  look  up  as  her 
"  head,  even  as  Christ  is  the  head  of  the  Church."  It  is  not 
her  fault  that  under  such  circumstances  she  fails  to  do  her  duty 
oftener  than  she  *  performs  it.  Society  afford s  the  husband 
every  opportunity  of  hiding  his  disgrace,  it  even  justifies  the 
wife  in  shutting  her  ey^s  to  it.  while  it  goads  him  on  to  murder 
in  revenge  for  hers.  This  most  degrading  result  of  the  wife's 
dependence  also  removes  the  greatest  natural  check  on  immo- 
rality. Real  independence,  and  sufficiency  of  employment, 
would  enable  the  wife  to  exact  from  the  hu-band  some  approach 
at  least  to  the  purity  he  requires  of  her. 

One  of  the  strongest  proofs  of  the  evils  of  our  marriage  law 
is  to  be  found  in  our  divorce  records.  The  uniformity  with 
which  wives  petition  for  separation  in  the  proportion  of  two  to 
one,  proves  that  their  more  frequent  resort  to  that  extreme 
mea-ure  results  from  some  uniform  pressure  of  necessity,  and 
not  from  accident.  The  following  table  is  compiled  from  the 
latest  reports  of  our  State  Librarian : 


Husband 

Wife 

Year. 

petitioner 

Per  Cent 

petitioner. 

Per  Cent. 

Total 

1866 

148* 

36.4 

259* 

63.6 

488 

1867 

122* 

30.3 

281* 

69  7 

459 

1868 

160 

33.5 

3  8 

66.5 

478 

1869 

164 

33  4 

327 

66.6 

491 

594 

33.4 

11£5 

66.6 

1916 

No  one  familiar  with  the  lawT  of  marriage  will  be  surprised 
at  the  foregoing  exhibit.  Where  a  husband  has  been  guilty  of 
u  such  misconduct  as  permanently  destroys  the  happiness"  of 
his  wife,  "  and  defeats  the  purposes  of  the  marriage  relation,'' 
her  condition  is  simply  intolerable.  The  well-meaning  clergy- 
men who  are  endeavoring  to  make  the  marriage  relation  perma 

*  Fairfield  County  not  reported. 


38     RES  ULTS  OF  THE  WIFE'S  DEPEXDEXCE. 


nent  should  remember  that  it  ought  first  to  be  made  just.  Tn 
Christ's  time,  the  law  of  divorce  degraded  the  wife  ;  in  our  time 
it  is  her  only  refuge  from  degradation.  If  Christian  ministers' 
will  note  this  difference,  and  will  follow  the  spirit  instead  of 
"  sticking  (o  the  letter"  of  the  divine  law,  they  will  pray  for  the 

wife's  legd  emancipation  rathe?  than  for  her  legal  coercion  

they  will  make  divorces  infrequent  by  making  them  unnecessary. 

The  arguments  most  usually  urged  in  behalf  of  the  existing 
system  of  dependence  are;  that  the  wife's  subjection  is  the 
result  of  divine  ordinance ;  that  dependence  is  the  natural  con- 
dition of  woman ;  that  even  if  the  wife  were  the  natural  equal 
of  the  husband,  some  headship  of  the  family  is  a  practical 
necessity,  and  more  properly  devolves  on  the  husband 

The  biblical  argument  in  favor  of  woman's  subjection  has 
been  so  thoroughly  considered  and  fully  answered  in  the  first 
tract  of  this  series  that  further  reply  seems  unnecessary.  '  It  is 
sufficient  to  say  that  the  same  strict  construction  whica  demands 
female  dependence  would  al<o  justify  polygamy  and  slavery, 
would  condemn  Total  Abstinence  as  contrary  to  divine  example, 
and  would  prescribe  celibacy  as  a  necessary  condition  to  exalted 
piety. 

The  argument  that  the  dependence  of  woman  is  natural,  is 
simply  a  mistaken  inference  from  the  fact  that  it  is  usual.  No 
such  inference  is  necessary,  for  the  fact  of  dependence  most 
naturally  follows  from  the  long  political  predominance  of  Force. 
Political  and  social  dependence  is  even  now  the  general  lot  of 
man.  Nevertheless,  independence  ju-tly  clams  the  preference, 
because  it  produces  a  superior  type  of  manhood.  It  is  equally 
incontestable  that  independence,  as  far  as  it  has  been  permitted, 
produces  a  superior  type  of  womanhood.  From  the  Tuikish 
woman  up  to  the  American  woman  the  sex  rises  steadilv  in 
esteem  as  it  rises  towards  independence.  It  is  a  very  common 
assumption  that  the  superior  re-pect  with  which  the  American 
woman  is  treated,  is  owing  to  the  superior  politeness  of  the 
American  man.  The  more  natural  explanation,  that  our  w^omen 
are  treated  with  more  respejt  because  they  deserve  more 
respect,  does  not  readily  Occur  to  male  conceit.  Hence  men 
mil  into  the  great  error  of  supposing  that  the  respect  they  pay 
woman  is  a  favor,  not  a  debt.  The  simple  fact  is  that  the 
American  woman  has  learned  the  lesson  of  greater  freedom  in 
greater  self-respect — to  be  surely  followed  by  the  increased 
respect  of  others,  whether  willing  or  not.    Experience  proves 


RESULTS  OF  THE  WIFE'S  DEPENDENCE.  39 


that,  from  queen  to  seamstress,  woman  meets  responsibility 
bravely,  and,  for  the  mo-t  part,  successfully.  It  seems  to  prove, 
even,  that  sudden  and  heavy  responsibilities  do  not  break  down 
untried  women  as  they  break  down  untried  men.  Least  of  all 
does  experience  justify  the  monstrous  slander  that  female  purity 
is  a  creature  of  male  protection,  which  will  be  saeritieed  if  that 
protection  is  withdrawn!  When  vice  claims  to  be  the  natural 
custodian  of  virtue  we  may  reasonably  suspect  an  improp  t 
motive;  and,  in  this  case,  the  motive  is  sufficiently  obvious ; 
chastity  is  fche  natural  foundation  on  which  the  marriage  rela- 
tion is  built,  the  pre-requisite  to  its  formation,  and  the  condition 
ot  its  continuance  ;  woman,  of  her  own  free  will,  fully  complies 
with  that  tenn  of  the  contract;  man  bullies  or  cheats  her  out 
of  the  performance  of  the  condition  on  his  part,  and,  to  hide  his 
default,  avers  that  her  purity  is  only  the  result  of  his  compul- 
sion. Even  pure  men  often  unthinkingly  repeat  this  brazen 
assumption  of  vice. 

Where  neither  religion  nor  nature  demand  the  wife's  subjec- 
tion, justice  will  not  readily  concede  it  as  a  necessity  of  state. 
The  argument  that  equal  right  must  be  sacrificed  to  secure 
harmony,  is  not  only  the  stalest  plea  of  despotism,  but  incon- 
sistent with  the  American  type  of  government.  Our  State  and 
National  constitutions  divide  supreme  rule  between  three,  co- 
ordinate departments,  with  the  avowed  purpose  of  avoiding 
that  very  unity  of  power  which  is  demanded  for  the  husband 
in  the  family.  No  reason  can  be  shown  for  giving  the  husband 
sole  control  of  matters  of  ^uch  prime  importance  as  residence, 
social  intercourse,  and  mode  of  life.  Those  are  arranged,  in 
the  first  in-tance,  by  mutual  agreement,  and  should  not  2>e 
changed  except  upon  common  consent.  If  either  deserves  tile 
absolute  control  of  the  children  while  young,  it  is  the  wife; 
when  older,  any  exercise  of  authority  by  one  parent,  against 
tlrj  known  wishes  of  the  other,  cannot  but  be  a*  mischievous  as 
it  is  unjust.  Above  all,  when  the  time  has  come  for  pushing 
the  yoimg  birds  out  of  their  family  nest,  disregard  of  the  wishes 
of  the  mother  is  an  inexcusable  cruelty.  Nor  is  there  any 
reason  why  the  wife  should  not  have  that  legal  interest  both  in 
the  control  and  in  the  proceeds  of  the  marriage  partnership  to 
which  her  unremitting  toil  entitles  her.  Even  in  those  classes 
where  the  wife's  burden  is  lighter,  it  is  unwise  to  lessen  her 
interest ;  .were  the  husband  obliged  to  yield  to  the  wife  the 
confidence  of  a  real  partnership,  there  would  be  fewer  cases  of 
thoughtless  extravagance  on  one  side,  and  of  selfish  personal 


40      RESULTS  OF  THE  WIFE'S  DEPENDENCE. 

expenditure  m  he  other.  In  no  other  biVsin'ess/firm  is  a  single 
partner  giver.  ~u.<olme  control  of  the  common  property  and 
considering  also  its  additional  bond  of  affecriofi,  that  feature  of 
the  marria0e  partnership  must  be  as  unneceacary  as  it  is  unusual. 


If  the  foregoing-  views  arc  correct,  and  tlio  fundamental  principle  of  the 
present  marriage  relation  is  wrong,  the  plain  remedy  lies  in  the  substitu- 
tion cf  independence  for  dependence,  f>f  equality  for  subjection.  The  wife 
should  he  given  entire  control  of  her  own  person,  joint  authority  with  her 
husband  over  the  children  they  nurture,  and  over  the  property  "they  accu- 
mulate. As  has  been  before  observed,  reform  in  this  country  has  taken 
the  shape  of  an  extension  of  the  English  separate  property  system.  Vast 
improvement  as  that  system  is  on  the  common  law,  it  offers  no  such  com- 
plete remedy  of  existing  evils  as  is  generally  assumed.  The  married 
woman  of  property  has  that  property  reserved  from  marital  authority  ; 
but  receives  no  further  relief.  The  married  woman  who  has  no  property 
remains  bound,  as  of  old,  to  labor  for  her  husband  for  board  wages.  If 
the  marriage  venture  is  successful,  she  is  secured  no  share  in  his  earnings  ; 
but  if  unsuccessful,  she  endures  an  equal  share  of  his  poverty  ;  and,  should 
he  die,  she  will  be  confined  in  the  poor-house  if  she  fails  to  support  his 
children.  A  system  which  leaves  so  large  a  portion  of  its  work  undone 
can  hardly  l>e  the  end  of  reform  ! 

The  enlargement  of  woman's  sphere  of  employment  so  as  to  admit  of 
the  free  development  of  her  powers  in  every  practicable  direction,  is  a  eon- 
ceded  necessity  of  the  times.  The  only  important  hindrance  the  law  offers 
t  >  the  single  woman's  progress,  is  that  of  disfranchisement;  but  with  mar- 
riage come  crippling  legal  disabilities  which  necessarily  terminate  any 
career  of  independence  she  may  have  begun.  How  far  marriage  is  a  nat- 
ural disqualification  for  all  but  domestic  employment,  can  never  be  known 
as  long  as  the  law  interferes  so  roughly.  A  wise  legislation  would  sweep 
away  all  existing  barriers ;  would  concede  to  the  wife  the  independence 
she  earns,  in  die  Family ;  and  would  trust  nature  to  limit  her  sphere  of 
usefulness,  outside  of  it  Then,  at  last,  being  no  longer  a  bond-woman, 
the  wife  may  compete  with  the  free  man,  and  may  rise  to  her  natural  posi- 
tion as  leader  of  that  inexperienced  minority  of  her  sex  who  are  struggling 
for  profitable  employment. 

The  grosser  e  vils  of  our  marriage  law  cannot  long  escape  correction ; 
but  experience  hardly  justifies  the  expectation  that  legislatures  composed 
mainly  of  husbands,  and  representing  only  males,  will  ever  abandon  the 
system  of  dependence  by  which  they  seem  to  pront.  There  is,  indeed,  no 
active  intention  to  oppress ;  on  the  contrary,  individual  cases  of  hardship 
meet  with  ready  sympathy  and  relief;  but  the  vis  inertia*,  of  selfishness  has 
hitherto  offered  an  insuperable  obstacle  tc>  u  thorough  redress  of  the  fun- 
damental wrong, 


